National Consumer Disputes Redressal
Cpl. Ashish Kumar Chauhan (Retd) vs Commanding Officer,,171 Military ... on 27 August, 2021
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 647 OF 2017 1. CPL. ASHISH KUMAR CHAUHAN (RETD) H NO-548/29, GULAB BARI, AJMER, RAJASTHAN ...........Complainant(s) Versus 1. COMMANDING OFFICER,,171 MILITARY HOSPITAL, Commanding Officer, 171 Military Hospital, C/o 56 APO PIN-900171 2. CAPTIAN DEVIKA BHAT,(MO-PHYSICIAN) Captain Devika Bhat (Physician),32, ANURAG ROW HOUSES, AMBLI BOPAL ROAD, BOPAL, AHMEDABAD PIN-380058 3. PRINCIPAL DIRECTOR, DIRECTORATE OF AIR VETERANS, INDIAN AIR FORCE, SUBROTO PARK, NEW DELHI-10010 4. COMMANDING OFFICER, HQ SWAC (U),
C/o. HQ South Western AIR Command,
Indian AIR Force,
Vayushakti Nagar,
Chiloda Road, GANDHINAGAR GUJARAT - 382 042 5. SENIOR MEDICAL OFFICER (SMO) Station Medicare Centre (SMC),
HQ SWAC (U),
C/o. HQ South Western AIR Command,
Indian AIR Force
Vayushakti Nagar,
Chiloda Road, GANDHINAGAR GUJARAT - 382 042 6. ECHS CENTRAL MODE LINE, DELHI CANTT, NEW DELHI-110010 7. JCDA (AF) AFCAO BUILDING, SUBROTO PARK, NEW DELHI-110010 ...........Opp.Party(s)
BEFORE: HON'BLE MR. C. VISWANATH,PRESIDING MEMBER HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,MEMBER HON'BLE MR. SUBHASH CHANDRA,MEMBER
For the Complainant : In person For the Opp.Party : Mr. Vijay Chandra Joshi, Advocate with Lt.
Col. Sandip Singh, Sgt. Jagdeep Dahiya
and Wg. Cdr. Abhijit Srikumar
Dated : 27 Aug 2021 ORDER
IA/11500/2019
The complainant has filed the aforementioned application for enhancement of compensation to the tune of Rs.2.5 crore in addition to the original compensation as claimed in the complaint. It has been stated in the application that the complainant applied and selected for the post of Watchman in Food Corporation of India, but he was declined appointment due to his disease, which was attributed to his service in the previous department. Due to not giving appointment in Food Corporation of India, he has suffered loss of Rs.2.5.crore.
We have considered the aforementioned application. In the original claim petition, the complainant has claimed compensation of 17 years salary together with chance of promotion and revision of pay scale. According to the principle of Hon'ble Supreme Court as laid down in Sarla Verma Vs. Delhi Transport Corporation (2009) 6 SCC 121, the 17 years' salary is more than the multiplier as prescribed for the age group of the complainant. Since the complainant is already claiming 17 years' salary, as such he cannot be permitted to claim further remuneration for those periods. Application, is therefore, rejected.
IA/4552/2018 & IA/15961/2018
These applications have already been allowed on 30.08.2018.
IA/1333/2019
The complainant has filed this application for correcting order dated 30.08.2018 and dismissing IA/15961/2018 by which the delay in filing the reply of opposite parties No.3, 4 and 5 has been condoned. Since the coordinate bench has already allowed IA/15961/2018, we find no reason to recall that order dated 30.08.2018. IA/1333/2019 is rejected.
IA/1508/2019
This application has been filed by opposite parties Nos.1 & 2 for grant of eight weeks' time for filing parawise reply of the complaint application. Since, the delay in filing the reply has already been condoned, no further order is required in this application. The application is disposed of.
IA/11867/2019
This application was filed for changing the Presiding Member which has already been done by Hon'ble President. No further order is required and the application stands disposed of.
IA/4867/2020, IA/5022/2021, IA/5140/2021 & 3411/2019
These applications have been filed for early hearing. These applications are allowed.
JUDGMENT
1. Heard CPL Ashish Kumar Chauhan, the complainant and Mr. Vijay Chandra Joshi, Advocate, for the opposite parties.
2. CPL Ashish Kumar Chauhan (the complainant) has filed this complaint, for (a) a compensation of Rs.95,03,00,000/- (Rupees Ninety Five Crores and Three Lakhs only) together with litigation expenses of Rs.10,000/- per hearing, (b) to direct the opponent to investigate into the circumstances and award suitable pecuniary punishment to the delinquent officials and (c) to pass any other direction as deemed appropriate in accordance with the facts and circumstances of the case. In paragraph-43, he has given details of the compensation (i) Rs.1.5 crore as travelling expenses, for his treatment, incurred every month from his house to New Delhi, (ii) Rs. 50 lakhs as the expenses for his medicines, (iii) Rs.1.53 crore for loss of salary, from the date of his retirement due to not giving extension till the age of superannuation (iv) Rs.1.5 crore as medical expenses, which he is required to incur due to non-availability of medical services and immunologist at his home town, (v) Rs.10 crores for violation of his human right, (vi) Rs. 40 crores for mental and social agony, and (vii) Rs.40 crores for his defamation.
3. The complainant stated that he was recruited in Indian Air Force on 21.05.1996, after being found physically fit, in medical test. In 2002, he was posted at 302 TRU, Pathankot. While on duty under "Operation Parakram", in Jammu & Kashmir, he fell sick and was admitted to 171 Military Hospital, Samba, in July 2002, where one unit blood was transfused into his body, during treatment. The papers relating to his treatment were handed over to Senior Medical Officer of 302 TRU, Pathankot for its maintenance, but the opposite parties intentionally lost/hid it and did not provide them to him. In the year 2014, he was transferred to Gandhinagar. Around March/April, 2014, he fell ill and was admitted to Station Medicare Centre, Head Quarter, South West Air Command (U), Gandhinagar. Due to complications developed during treatment, he was transferred to Military Hospital, Ahmedabad. However, his condition went on deteriorating. As such he was shifted to INHS Asvini, Mumbai, where his blood test was done, in which Human Immunodeficiency Virus (HIV) was diagnosed on 21.05.2014. After treatment, he came back to Station Medicare Centre, Gandhinagar, in June, 2014. When he came to know about HIV infection, he made efforts to know as to from where and how he was infected with HIV. After considerable efforts, he learnt that during blood transfusion in July, 2002, at 171 Military Hospital, Samba, he got infection of HIV. After detection of HIV, First Medical Board was held on 11.06.2014, in which, his disease was made 'non-attributable to service'. He was not satisfied with the findings of Medical Board and demanded the documents relating to his blood transfusion in July 2002, at 171 Military Hospital, Samba, which was refused by the opposite parties on the pretext that they were not available. In February, 2015, he was admitted at Military Hospital, Ahmedabad due to H1N1 (Swine) Influenza, Macrocytic Anaemia, Subhyalodid Haemorrhage along with Immune Surveillance and transferred to Station Medicare Centre on 03.03.2015. The complainant, in order to obtain his documents, relating to his treatment in July 2002, referred the Sheet Role (Service Book) for seeking the information about Personal Occurrence Report (POR) action of hospitalisation during July 2002, which have to be maintained and endorsed in the service record by Commanding Officer of the concerned Unit under the Rules. Senior Medical Officer (opposite party-5), then wrote a letter dated 24.09.2014 to the Air Force Record Office, New Delhi, in this respect. Then, through letter dated 29.09.2014, his Medical Case Sheet was supplied. A perusal of Medical Case Sheet shows that one unit of blood was transfused into his body on 10.07.2002 but it has not been mentioned in it that ELISA (Enzyme Linked Immunosorbent Assay) test of the blood was done nor any report of ELISA test was supplied/pasted with it. Thereafter, Medical Boards were held on 12.12.2014 and 24.06.2015 in which his disability was found as attributable to service due to transfusion of one unit blood in July, 2002. The opposite parties sent the complainant to INHS Asvini, Mumbai in December, 2015, for medical opinion of the specialist and his medical classification. The Specialist gave his opinion on 16.12.2015 and classified him as P-3, Permanent Equivalent and further opined that the complainant be excused from PT/Parade/Games/Standing duties and to avoid undue exposure to air conditioner environment/moist condition. When he was returning from INHS Asvini, Mumbai, he was intentionally and maliciously admitted at Station Medicare Centre from 18.12.2015 to 22.12.2015. During this period, he was not provided meals for 5 days. In order to implicate him in criminal case, the opposite party transferred Rs.50,000/- approximately in his bank account; however, later on they withdrew it from his account. The opposite parties deliberately tried to declare the complainant as a patient of psychological disorder and recommended for counselling on 05.01.2016 and also counselled him. The complainant, through letter dated 10.09.2015, requested to supply the certified copies of his medical documents, which were essential for his treatment after discharge from the service but the same were not provided and a condition has been put before the complainant to sign the proceeding of Release Medical Board, which in fact never took place after due notice to him. The complainant, through letter dated 17.11.2015, requested for Pre-Release Course, which was denied. Without Release Medical Board, the complainant was discharged from service on 31.05.2016, denying his extension of the service. He was not provided Ex-Servicemen Contributory Health Scheme (ECHS) Card timely, for which he had to move an application on 26.04.2016, then temporary receipt was made on 27.09.2016. In the absence of ESHS Card, he was not provided treatment/medicines, although Rs.15,000/- has been deducted from his post retirement dues, for his treatment through out of his life. The complainant moved a letter dated 22.09.2016, for supply of disability certificate, which was denied through letter dated 14.12.2016, on the ground that there was no provision for the same. After retirement, the complainant was detected "calculus of size 8.6 mm in right lower ureter below crossing the iliac vessels", for which, he was treated on his own expenses at Mittal Hospital & Research Centre Pushkar Road, Ajmer, although it was an empaneled hospital of ECHS, Ajmer Rajasthan. Due to negligence caused by the opposite parties, the complainant contacted the dreadful decease HIV. The complainant is helpless and is going through a lot of stress and has become very sensitive about his future life. The opposite party have spread the confidential information of the complainant regarding to his HIV infection to all the persons of his unit including Section Commander due to which his human right has been violated. These persons also defamed him and exposed his disease which resulted in a lot of mental torture and humiliation. The opponents continuously harassed the complainant for more than 14 years and adopted unreasonable, unjustified and autocratic action. HIV infection is a life-long disease and the complainant and his entire family has to suffer mental agony and punishment for whole of his life. For his treatment, the complainant has to go Delhi in every month, at his personal expense. He has to incur money for the medicines. The complainant was a dedicated, hardworking and sincere soldier and due to his devotion to duty, his marital life was disturbed, for which the complainant had to face several cases and during that period also no moral/actual support was provided by the opponents. The opponents intentionally did the Personal Occurrence Report (POR) action to show that he was living out (staying with family). The opponents have maliciously and falsely reflected the name of the complainant in the column of Daily Ration Strength Summary Register. In case, the complainant had been granted extension of his service, he would have served till the age of 57 years. Thus he had suffered loss of future salary for 17 years, including chance of promotion and revision of pay scales. The complainant is suffering from emotional, financial and mental stress due to his disease, which was attributed to negligence of the opposite parties.
4. Opposite parties-1 and 2 filed their joint written statement/ reply. They stated that as per records the complainant was admitted to 171, Military Hospital, Samba on 20.06.2002 with endorsement "complained loss of appetite, discoloration of urine, 5 K.G. loss of weight in 5 months, occasional fever and pain in abdomen (Dyspepsia)". On investigation "Macrocytic Anaemia with Thrombocytopenia" was diagnosed. His haemoglobin was 6.3 g. The complainant was treated conservatively and one unit of blood was transfused on 10.07.2002 as per discharge summary dated 30.07.2002. After treatment, he became asymptomatic and was discharged on 31.07.2002 in medical category 'AYE'. The complainant then went for one month sick leave and after leave he was again admitted at 171 Military Hospital on 09.08.2002. In blood test report, his haemoglobin was found 13.2 g and he was fully asymptomatic. He was referred for review medical examination at 166 Military hospital, where his examination was done on 21.09.2002 and his haemoglobin was found 13.2 g and he was fully asymptomatic. The complainant, while in treatment at Station Medicare Centre, was transferred to Military Hospital, Ahmedabad on 05.03.2014, as a case of "AC Gastroenteritis". On investigation "Pneumonia Lt side septic shock" was diagnosed, which was managed conservatively. He was transferred to INHS Asvini, Mumbai for further evaluation, where he was diagnosed 'Immune Surveillance' by NACO Serology-III. Senior Advisor Medicine and GE recommended him to be placed in LMC P3 (T-24) under sheltered appointment. Thereafter, in Medical Board held on 11.06.2014 at Station Medicare Centre, HQ SWAC (U) vide AFMSF-15, he was placed in category LMC A4G4 (T-24). The disability was not attributed to service. In consequent review, he was upgraded to LMC A4G3 (T-24) vide AFMSF-15 dated 12.12.2014. Again on review, he was placed in LMC A4G4 (T-24) vide AFMSF-15 dated 24.06.2015. Release Medical Board, not solely on medical grounds, was held at HQ SWAC (U) IFA vide AFMSF-16 dated 21.12.2015, and complainant was found fit to be released in low medical category A4G4 (P) for disability Immune Surveillance. Release Medical Board has considered his disability as attributable (Reason: Onset 11 June, 2014 (peace) disability developed due to one unit blood transfusion on 10.07.2002 at 171 Military Hospital. Hence considered attributable). Percentage of disability was assessed @ 30% for two years. Disability qualifying elements of disability pension was @ 30% for two years. On adjudication, PCDA (P) Allahabad also upheld the recommendation of RMB and sanctioned disability pension claim vide letter No. RO/3305/3/Med dated 22.03.2016. The case was submitted to Jt CDA (AF) New Delhi for consideration and issue of PPO vide letter dated 15.06.2017. As per Dte of Air Veterans (Legal Cell) letter dated 26.03.2018, Release Medical Board assessed his disability Immune Surveillance @ 30% for two years and recommended it as attributable to service. Medial Board and Release Medical Board made endorsement "Immune Surveillance attributable to service" without any documentary evidence or corroborative opinion of specialist and only on insistence of the complainant. After filing of this complaint, a Court of Inquiry was conducted to investigate the circumstances under which the complainant was transfused blood at 171 Military Hospital Samba on 10.07.2002 and subsequently diagnosed as HIV positive on 21.05.2014. The Court assembled on 01.07.2018 and on subsequent dates. The Court recorded statements of CO Sanjay Nijhwan, Cl. Spl (Med) Devika Bhat, Poran Jyoti Borpujari, OIC Blood Bank, 166 MH Jammu & Kashmir and Sohanpal Singh, Adm. Clk, 426 Field Hospital. The Court found that documents pertaining to blood demand, blood transfusion and screening of blood for marker were not available and had been weeded out, in 2007. As per statement of present Commanding Officer, there was an "Adhoc Blood Bank" at 171 Military Hospital. As per SOP, the blood had to be indented from 166 Military Hospital. It was responsibility of 166 Military Hospital to screen the markers (HIV, HCV, VDRL, HBs Ag, Syphilis, Malarial parasite) before issuing blood to 171 Military Hospital, which was authorised as an "Adhoc Blood Bank". There was a long gap of 12 years in transfusion of blood and diagnosis of HIV. During this long period, no symptom of HIV was found in the body of the complainant. There may be other causes for HIV infection. Preliminary objections that the complainant was not a consumer, exclusive jurisdiction of Armed Forces Tribunal and the complaint is time barred were also raised.
5. The opposite parties-3 to 5 filed their joint written statement/reply. The reply of the opposite parties-3 to 5 is similar to the reply of opposite parties-1 and 2 on all material facts. They have also given the place of posting of the complainant during his service period.
6. The complainant filed his Rejoinder Affidavits to the written statements of both set of the opposite parties, in which the facts stated in the complaint have been reiterated. It has been stated that Maj. Davaiah MS had no authorisation by the opposite parties-1 and 2 to file written statement and as such it is liable to be taken off the record. All the pages of the reply were not signed (except last page signed by Mr. Vijay Chandra Joshi, Advocate, who represents opposite parties-3 to 5) and as such this reply is liable to be taken off the record. The complaint is maintainable before this Commission and is not barred by Armed Forces Tribunal Act, 2007. At the time of retirement, the complainant has paid Rs.15,000/- for medical facilities through ECHS for entire life as such he is consumer. Delay of 290 days in filing the complaint has already been condoned on 20.06.2017, on the delay condonation application (IA) No. 3209 of 2017. Blood transfused to the complainant on 10.07.2002, at 171 Military Hospital contained HIV virus, which had caused infection to the complainant. The opposite parties did not conduct HIV test of the complainant during 2002 to 2013. It is only in 2014, HIV test of the complainant was conducted, in which HIV positive was diagnosed on 21.05.2014. At the time of recruitment, the complainant was found medically fit, and the burden lies upon the opposite parties to prove that no negligence was committed at the time of blood transfusion in 2002. The disability of the complainant was attributed to service, which has been accepted in Medical Boards dated 12.12.2014 and 24.06.2015 as well as in reply supplied under Right to Information Act, 2005. The complainant has not received any amount towards disability pension. The Court of Inquiry conducted by the opposite party was not proper, inasmuch as the complainant was an important witness but he was neither examined nor given opportunity to adduce evidence. Its report cannot be relied upon. The medical papers relating to the treatment of the complainant of July 2002 are in custody of opposite parties-3 to 5 as these papers were confidential documents but they are deliberately withholding it. The report regarding screening of the blood was liable to be obtained before transfusion and it had to be attached with the medical case sheet of the complainant. There is nothing on the record to prove that SOP was followed at the time blood transfusion to the complainant. The complainant was never informed about Release Medical Board.
7. The complainant filed voluminous documentary evidence and case law, which have been carefully perused and examined. He has filed his Affidavit of Evidence on 01.01.2020. The opposite parties filed Affidavit of Evidence of Captain Alokesh Roy on 14.07.2021 and Affidavit of Evidence of Wg Cdr Dinesh Sirpal on 15.07.2021. On 25.02.2019, the opposite parties filed additional evidence through Interim Application No. 3411 of 2019. On 28.07.2021, the opposite parties filed additional evidence through Interim Application No. 5140 of 2021, which was allowed on cost of Rs.10,000/- on 30.07.2021. The complainant was offered opportunity of rebuttal evidence but he stated that he did not want to file any rebuttal. Later on, cost of Rs.10,000/- was paid to him.
8. The opposite parties raised three preliminary objections i.e. (i) The complaint was barred by the limitation and the delay was not liable to be condoned, (ii) Jurisdiction of this Commission is barred under Armed Forces Tribunal Act, 2007 and (iii) The complainant is not a consumer as the medical service was being provided to him free of cost. Delay of 290 days in filing the complaint has already been condoned on 20.06.2017. As such we cannot go into this issue again.
9. So far as jurisdiction of this Commission being barred under Armed Forces Tribunal Act, 2007, is concerned, Armed Forces Tribunal Act, 2007 has been enacted with an object to adjudicate the disputes with respect to commission, appointment, enrolment and condition of service in respect of armed forces and the appeal arising out of an order, finding or sentence of court martial, by Armed Forces Tribunal. Section 33 of this Act bars jurisdiction of civil court in respect of these matters. Service matter has been defined under Section 2 (o) of this Act, in which premature retirement, superannuation and termination from service are included. A part of the present complaint is for compensation, alleging medical negligence, violation of human right and defamation which is not covered under the term service matters as such this complaint is not barred under Armed Forces Tribunal Act, 2007, as a whole. However, this Commission has no jurisdiction to go into the validity of discharge of the complainant from service in terms of his enrolment and not giving extension to him and consequent damages claimed by the complainant.
10. It has been argued that free medical facility was provided to the complainant during service period as it does not fall within the definition of service as given in the Consumer Protection Act, 1986. Section-2 (o) of the Consumer Protection Act, 1986 defined "service" as follows:-
2. (o) "service means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;"
11. The term "service" as used in this Act, came for consideration before a Bench of three Hon'ble Judges of Supreme Court in Indian Medical Association Vs. V.P. Santha, (1995) 6 SCC 651, in which it has been held that the term "service" contained both inclusion and exclusion clauses. "The rendering of any service free of charge or under a contract of personal service" lay in exclusion clause. However, it has been given limited application. It has been held in concluding paragraph-55 (4) that the service rendered by a medical officer to his employer under the contract of employment would be outside the purview of 'service' as defined under Section 2 (o) of the Act; In paragraph-55 (12) it was held that similarly where as a part of the condition of service, the employer bears the expenses of medical treatment of an employee and his family members depended on him, such a service rendered to an employee and his family members by the medical practitioner, the hospital/nursing home would not be free of charge and would constitute service under Section 2 (o) of the Act. This judgment has been followed in Laxman Thamappa Kogiri Vs. G.M. Central Railway, (2007) 4 SCC 596 and the judgement in State of Orissa Vs. Divisional Manager, LIC, (1996) 8 SCC 655 was held as per-in-curium. In view of the judgments of the Supreme Court, the present complaint, alleging deficiency in medical service by the Military Hospital is maintainable. It may be mentioned that the complainant has also relied upon the judgment in Kishore Lal Vs. Chairman State Insurance Corporation, (2007) 4 SCC 579 but in this case, the Hospital was maintained by State Insurance Corporation, which was charging premium from the employees and the insurance is within inclusive clause of the term "service" as such this case is distinguishable.
12. The complainant submitted that he was admitted at 171 Military Hospital in July 2002 as proved from Annexures-C-6. At that time, one unit blood, infected with HIV virus, was transfused in his body on 10.07.2002, which had caused HIV infection to him. 171 Military Hospital did not have licence for a blood bank, nor was any pathologist and transfusion expert posted there. The medical staff, who had transfused the blood, did not conduct HIV test/screening of the blood. The consent for transfusion of the blood was not taken from the complainant or his family member. The screening report of the blood was liable to be obtained before transfusion and attached to the medical case sheet of the complainant. There is nothing on the record to prove that Standard Operating Procedure was followed at the time blood transfusion to the complainant. At the time of recruitment, the complainant was found medically fit. Burden lies upon the opposite parties to prove that no negligence was committed at the time of blood transfusion in 2002. The opposite parties did not conduct any test of the complainant relating to HIV from 2002 to 2013. It is only in 2014, HIV test of the complainant was conducted, in which HIV positive was diagnosed on 21.05.2014. The disability of the complainant was attributed to service, which has been accepted in Medical Board dated 12.12.2014 and 24.06.2015 (Annexure-C-7) and in reply dated 14.12.2016 (Annexure-C-14) supplied under Right to Information Act, 2005. Under the Rules, findings of Medical Board can be challenged within one year. Medical Board dated 12.12.2014 and 24.06.2015 were not challenged. The Court of Inquiry conducted by the opposite party was not proper in as much as the complainant was an important witness but he was neither examined nor given opportunity to adduce evidence. Its report cannot be relied upon. The medical papers relating to the treatment of the complainant of July 2002 are in custody of opposite parties-3 to 5 as these papers were confidential documents but they are deliberately withholding it.
13. The counsel for the opposite parties submitted that as per Service-Book and discharge summary dated 30.07.2002 (Annexure-C-6) and the papers filed along with IA No. 3411 of 2019, the complainant was admitted to 171, Military Hospital, Samba on 20.06.2002, with endorsement "complained loss of appetite, discoloration of urine, 5 K.G. loss of weight in 5 months, occasional fever and pain in abdomen (Dyspepsia)". "Macrocytic Anaemia with Thrombocytopenia" was diagnosed on investigation and his haemoglobin was found 6.3 g. One unit of blood was transfused on 10.07.2002 then his haemoglobin was increased to 8.9 g on 25.07.2002 and thereafter to 11.5 g. After treatment, he became asymptomatic and was discharged on 31.07.2002 in medical category 'AYE'. 171. The complainant then went for one month sick leave and after leave he was again admitted at 171 Military Hospital on 09.08.2002. In blood test report, his haemoglobin was found 13.2 g and he was fully asymptomatic. He was referred for review medical examination at 166 Military Hospital, where his examination was done on 21.09.2002 and his haemoglobin was found 13.2 g and he was fully asymptomatic. From these documents, it is proved that no negligence was committed in his treatment in July 2002. 171 Military Hospital, Samba was a temporary hospital attached to 166, Military Hospital. The Blood Bank was maintained at 166, Military Hospital, which had licence of Blood Bank since 1996 and renewed till the date. When 171 Military Hospital used to indent the blood, then it was supplied from 166 Military Hospital, after screening the markers (HIV, HCV, VDRL, HBs Ag, Syphilis, Malarial parasite), which were mandatory under Standard Operating Procedure. Director General, Armed Forces Medical Services issued a Circular dated 30.11.1992, directing all the Military Hospital to take measure of prevention of infection of HIV among the force personals. Since then, HIV test was made compulsory for the blood banks maintained by Military Hospital. There was no reason for not screening the blood, before its transfusion in the body of the complainant. If the transfused blood had any infection or not matched with his blood group, then there would have been its immediate reaction. From discharge summary dated 30.07.2002, it is proved that after transfusion of the blood, haemoglobin level was gradually increased from 6.3 g to 11.5 g and after full recovery, the complainant was discharged on 31.07.2002. In fact, there was no HIV infection in the body of the complainant till 05.03.2014. In paragraph-10 of the complaint, the complainant has stated that around March/April, 2015, he got sick and admitted to Station Medicare Centre, HQ SWAC (U), from where he was transferred to Military Hospital, Ahmedabad, from where he was further transferred to INHS Asvini, Mumbai. He deliberately concealed the fact that in Military Hospital, Ahmedabad, his blood test was done and he was found HIV negative in Report dated 05.03.2014 (On page 41 of I.A. No. 5140 of 2021). On investigation, he was found suffering from "Pneumonia with septic shock". He remained admitted at Military Hospital Ahmedabad from 05.03.2014 to 27.03.2014. Vide Hospital Discharge Summary dated 28.03.2014, (Annexure-OP-1/9) (page 13 of I.A. No. 5140 of 2021), he was recommended for one month sick leave and review thereafter. He was cured at that time and after discharge from hospital, he went on leave for one month. After coming back from sick leave, he went to Military Hospital, Ahmedabad on 29.04.2014 and was examined as OPD patient. When his condition again deteriorated, he was admitted on 13.05.2014 at Military Hospital, Ahmedabad and at this time he was transferred to INHS Asvini, Mumbai, on 19.05.2014 (vide Hospital Transfer Slip, Annexure OP-1/10), where in his Report dated 21.05.2014, HIV positive was diagnosed. As per medical literature, HIV infection can be caused due to (a) unprotected sexual intercourse with HIV infected person (both homosexual and heterosexual), (b) blood transfusion, (c) Sharing of HIV needles and (d) Transfer of HIV virus from mother to her baby during or before birth or while breast feeding. In all probability, during leave from 30.03.2014 to 28.04.2014, he was infected with HIV infection. His initial Medical Board was held on 11.06.2014 at Station Medicare Centre, HQ SWAC (U) vide AFMSF-15, in which he was placed in category LMC A4G4 (T-24). His disability was not attributed to service. When the complainant obtained Service-Book and discharge summary dated 30.07.2002 (Annexure-C-6), through letter dated 29.09.2014, he succeeded in persuading the Medical Board dated 12.12.2014 and 24.06.2015 to endorsement of the disability attributed to service, concealing the fact that in the Report dated 05.03.2014, he was found HIV negative. The complainant deliberately concealed the material fact relating to the Report dated 0503.2014 and leave from 30.03.2014 to 28.04.2014. The complaint is liable to be dismissed with exemplary cost.
14. We have considered the arguments of both the parties and examined the record. Supreme Court in Jacob Mathew Vs. State of Punjab, (2005) 6 SCC 1, Nizam Institute of Medical Sciences Vs. Prashanth S Dhananka, (2009) 6 SCC 1, Kusum Sharma Vs. Batra Hospital, (2010) 3 SCC 480 and Bijoy Sinha Roy Vs. Biswanath Das, (2018) 13 SCC 224 has laid down the guide lines for examining medical negligence. Paragraphs-11 to 13 of the judgment of Bijoy Sinha Roy (supra) are quoted below:-
"11. Negligence is breach of duty caused by omission to do something which a reasonable man would do or doing something which a prudent and reasonable man would not do. Negligence in the context of medical profession calls for a treatment with a difference. Error of judgment or an accident is not proof of negligence. So long as doctor follows a practice acceptable to the medical profession of the day, he cannot be held liable for negligence merely because a better alternative course was available. A professional may be held liable for negligence if he does not possess the requisite skill which he claims or if he fails to exercise reasonable competence. Every professional may not have highest skill. The test of skill expected is not of the highest skilled person. Concept of negligence differs in civil and criminal law. What may be negligence in civil law may not be so in criminal. In criminal law, element of means rea may be required. Degree of negligence has to be much higher. Res ipse loquitur operates in domain of civil law but has limited application on a charge of criminal negligence.
12. The principles have been laid down by a Bench of three Judges and continue to hold the field. This court has also held that safeguards were necessary against initiation of criminal proceedings against medical professionals and till such safeguards are incorporated by the State, direction of this Court will operate to the effect that the private complaint will not be entertained unless credible opinion of another competent doctor in support of the charge of rashness was produced. The investigating officer must obtain independent and competent medical opinion preferably from a doctor in Government service, qualified in the field concerned in the light of judgment in Jacob Mathew. A medical professional may not be arrested in a routine manner.
13. In Martin F. D'Souza v. Mohd. Ishfaq, this Court observed that uncalled for proceedings for medical negligence can have adverse impact on access to health. While action for negligence can certainly be maintained, there should be no harassment of doctors merely because their treatment was unsuccessful. This Court directed that the Consumer Fora must proceed with any complaint only after another competent doctor or Committee of doctors refers that there was a prima facie case. In V. Kishan Rao V. Nikhil Super Speciality Hospital, this direction was however, held to be inconsistent with the binding judgment in Jacob Mathew. It was held that there was obvious jurisprudential and conceptual differences between the cases of negligence of civil and criminal matters. Protection of the medical professionals on the one hand and protection of the consumer on the other are required to be balanced."
15. In the present case, there is no Expert Opinion to the effect that at the time of blood transfusion in the body of the complainant, the staff of 171 Military Hospital had committed any negligence. As such the complaint is liable to be dismissed on this short ground alone.
16. According to the opposite parties, the documents relating to the treatment of the complaint in June-July, 2002 at 171 Military Hospital were weeded out. Only discharge summary, which was obtained by 302 TRU Pathankot, for making necessary entry in Service Book of the complainant, remained there. When the complainant pointed out Personal Occurrence Report (POR) action of hospitalisation during July 2002 and demanded this paper, through letter dated 24.09.2014, then his Service Book was opened and discharge summary was found there, which were supplied to him through dated 29.09.2014. If other papers were available, then there would have been no reason for not supplying those papers. Indian Medical Council (Professional Conduct Etiquette and Ethics) Regulation, 2002, was published in Gazette of India dated 06.04.2002. As per clause-1.3.1, the medical records pertaining to an indoor patient have to be maintained for three years. Under clause-1.3.2, if a medical record is demanded by the patient, then it shall be issued within 72 hours to him. Under clause-7.16, for performing operation, the consent of the patient or his family member has to be obtained. From this Regulation 2002, it is clear that the medical records pertaining to an indoor patient has to be maintained for three years only. As such, at this time, there is no reason to believe that record relating to the treatment of the complaint of June-July 2002 are still in custody of the opposite parties, particularly when 171 Military Hospital, itself was a temporary hospital. As such no adverse inference can be drawn against the opposite parties that they had withheld material evidence in their possession. According to this Regulation, no consent of the patient or his family member was required for blood transfusion.
17. From entry in Service Book and discharge summary dated 30.07.2002, the facts that the complainant was admitted to 171, Military Hospital, Samba on 20.06.2002, with endorsement "complained loss of appetite, discoloration of urine, 5 K.G. loss of weight in 5 months, occasional fever and pain in abdomen (Dyspepsia)"; "Macrocytic Anaemia with Thrombocytopenia" was diagnosed on investigation; his haemoglobin was found 6.3 g; One unit of blood was transfused then his haemoglobin was increased to 8.9 g on 25.07.2002, and thereafter to 11.5 g.; after treatment, he has become asymptomatic and discharged on 31.07.2002. In review examination on 09.08.2002, his blood test report, showed haemoglobin of 13.2 g and he was fully asymptomatic. From these documents, it is not proved that the blood which was transfused in the body of the complainant was infected with HIV. From the Blood Test Report dated 05.03.2014, it is fully disproved that the complainant got infection on HIV on 10.07.2002 at the time of blood transfusion or at any time prior to 05.03.2014. Initial Medical Board of the complainant was held on 11.06.2014 at Station Medicare Centre, HQ SWAC (U) vide AFMSF-15, in which his disability was not attributed to service. When the complainant obtained Service-Book and discharge summary dated 30.07.2002 (Annexure-C-6), through letter dated 29.09.2014, then he succeeded in persuading the Medical Board dated 12.12.2014 and 24.06.2015 to an endorsement of the disability attributed to service, concealing the Report dated 05.03.2014, in which he was found HIV negative. Medical Board dated 12.12.2014 and 24.06.2015 and letter dated 14.12.2016 are not primary evidence relating to HIV disease. They do not base their findings on any evidence in this respect, while Test Report dated 05.03.2014 is primary evidence, relating to disease and has overriding effect. From the Blood Test Report dated 05.03.2014, it is fully disproved that the complainant got infection of HIV on 10.07.2002 at the time of blood transfusion. From the evidence on record, it is proved that after being cured in March, 2014, the complainant proceeded on leave during 30.03.2014 to 28.04.2014 and was infected with HIV after 05.03.2014, which was diagnosed on 21.05.2014. In view of the aforesaid discussions, it is fully proved that no negligence was committed at the time of blood transfusion in the body of the complainant in July 2002 nor he got HIV infection at that time.
18. Absolutely vague allegations without giving name, time, date and place have been made that the opposite parties have spread the confidential information of the complainant regarding to his HIV infection to all the persons of his unit including Section Commander due to which his human right has been violated and he was defamed, which resulted a lot of mental torture and humiliation to him. Defamation and violation of human right is an act of tort and has to be proved beyond reasonable doubt before holding any person as guilty of it. No independent oral or documentary evidence has been adduced in this respect. The opposite parties, who were posted at different places, cannot be held either individually or jointly liable for defamation and violation of human right of the complainant, in the absence of any evidence against them. Allegation that the opponents had continuously harassed the complainant for more than 14 years and adopted unreasonable, unjustified and autocratic action is also not liable to be believed inasmuch as no complaint against any opponent was made during service period. As held above, jurisdiction of this Commission to go into the validity of discharge/retirement of the complainant is barred under Armed Forces Tribunal Act, 2007 as such we refrain ourselves to go in that issue. In view of the fact that the complainant is a retired air veteran and suffering from dreadful disease, we refrain from imposing exemplary costs as he had concealed material fact and evidence in his possession and thereby attempted unjust enrichment.
O R D E R In view of the aforesaid discussion, the complaint has no merit and it is dismissed.
...................... C. VISWANATH PRESIDING MEMBER ......................J RAM SURAT RAM MAURYA MEMBER ...................... SUBHASH CHANDRA MEMBER