State Consumer Disputes Redressal Commission
Gundala Hariprasad vs 1.Sl. Diagnostic Private Ltd., on 11 January, 2024
BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION: HYDERABAD.
CC.NO.203 OF 2017
Between:
Gundala Hariprasad,
S/o.Krishnaiah Gundala,
Aged about 36 years,
Occ: employed, R/o.Flat NO.202,
Sree Kamal Residency, plot no.4,
Prasanth Nagar left lane from
Police Gate , Kondapur K.V.Ranga Reddy,
Telanangana - 84. ... Complainant
And
1.SL.Diagnostic Private Limited,
1-8-702/35, Ground Floor,
Windsor Plaza, Nallakanta,
Hyderabad 500 044,
Represented by its Director
2. Mesco Diagnostics Private Limited,
22-1-1037/1, Zohra Hospital Darus Shifa,
Hyderabad - 500 024India,
Hyderabad,
Represented by its Director.
3. Salus Health Care,
PB No.1011, 3-6-260B,
Mez-3, MYM Money Center,
Opp:Telugu Academy Himayath Nagar,
Hyderabad 29 Andhra Pradesh
Represented by its Director. ...Opposite parties
Counsel for the Complainant : M/s.D.Satya Narayana
Counsel for the Opposite Parties : M/s.P.Naga Pradeep-OP.No.1.
M/s.Omar A Pasha-OP.No.2.
OP.No.3- Notice served.
QUORUM: HON'BLE SRI V.V.SESHUBABU, MEMBER
& HON'BLE SMT R.S. RAJESHREE, M EMBER THURSDAY, THE ELEVENTH DAY OF JANUARY, TW O THOUSAND TWENTY FOUR ******* Order : (Per Hon'ble Smt.R.S.Rajeshree, M ember-Non -Judicial)
01). This is a complaint filed by the Complainant under Section 17(1) (a) (i) of Consumer Protection Act seeking directions against opposite parties as follows:
1 To direct the opposite parties herein to provide immediate monetary compensation of Rs.1,00,00,000/- (Rupees One Crore only) to the complainant, for subjecting the complainant to untold physical hardship mental agony unmindful of the complainant's eligibility and otherwise being qualifying for the position with the company in Bahrain, the opportunity could not materialize owing to the incorrect diagnostic result provided by the opposite party, which resulted in the huge loss of professional opportunities for the complainant and had also caused severe setback of the complainant's health condition and also has resulted in the loss of potential professional opportunities, by which the complainant was subjected to severe financial loss coupled with excessive physical strain and undue mental stress."
02). The case of the complainant is that he got an employment opportunity in M/s.Ebrahim K Kanoo Company, Manama, Kingdom of Bahrain vide its provisional offer letter dt.25.5.2017 for the the position of Administrator, IT Security, but the said employment was subject to obtaining the fit medical certificate after undergoing the requisite tests from, the diagnostic centres approved the Company and in compliance of the said condition , the complainant submitted himself before the oppositeparty no.1 diagnostic centre for the tests to be conducted which was authorised by M/s.Ebrahim K Kanoo Company. Similarly opposite parties 2 & 3 are also Diagnostic Centres approved by the company of Behrain. ON 10.6.2017 the opposite party no.1 had conducted the tests and to his utter shock, HIV result of the complainant showed "Human Immuno Antivirus Reactive (HIV)"
with value of 2.36. To cross check the results, the complainant got the test done once again on 14.6.2017, again the result was shown as HIV Reactive, and this time the value was 2.88. In order to ascertain the said result of opposite party no.1, the complainant preferred to get himself tested at A.P.State Aids Control Society, Hyderabad at Durgabhai Deshmukh Hospital on 14.6.2017 and the said institution had given the result as " Non Reactive" to HIV. The complainant got a similar tests done at Metropolis Healthcare Limited on 15.6.2017 wherein the said centre had reported as 'Non Reactive'. On 16.6.2017 the complainant had again taken advanced tests from Metropolis Health Care Limited which stated that HIV-I DNA Qualitative : "NOT DETECTED". Due to the wrong report given by the opposite party no.1,t he 2 complainant had suffered not only by the loss of job, but it had a great impact on him since he could not concentrate on any of his official works or other personal matters. Due to such wrong report given by opposite party no.1, the company had denied the appointment to the complainant, due to which the complainant was unjustifiably deprive of a good opportunity for no fault of his. Subsequently again on 1.9.2017 the complainant got himself tested with opposite party no.2 and this time the report was "NON REACTIVE (0.33)" . The opposite party no.1 in order to get itself confirmation had earlier referred the complainant to opposite parties 2 & 3 who also gave the report in the similar lines as opposite party no.1. As such this act of opposite parties 1 to 3 in giving the false reports by stating th at the complainant was detected to have HIV positive had caused severe mental agony to the complainant apart from monetary loss and hardship caused in running around several diagnostic centres to get the clarification. The complainant got issued legal notice dt. 26.6.2017 for which the opposite party had given a reply on 12.7.2017 with the explanation that the tests are conducted only on machines having a particular standards and that they have no role in the reports except for signing the reports . As the opposite party had failed to admit their mistake and come forward to pay any compensation, the present complaint is filed seeking compensation for the deficient acts of the opposite parties which has ruined his life and his future job opportunities. The complainant also claimed costs of the complaint.
03). Written version of opposite party no.1:
Opposite party no.1 filed their written version while admitting that the complainant approached them for the various tests but had denied that the complainant had got an employment opportunity in M/s.Ebrahim K Kanoo company, Manama Kingdom of Bahrain and had pleaded that the complainant is an applicant with GCC(Gulf Cooperation Council). GCC organization is located in Riyad, Soudi Arabia and it controls and regularise the appointments of employees and facilitates employment in Gulf Countries. Some employers depend on GCC for recruiting new staff and put a pre condition to get clearance from GCC. The GCC has appointed opposite party no.1 for screening its candidates in 3 respect of expatriate workers pre medical check up programme. After the candidate applies to GCC. The GCC in its discretion directs the candidate to one of the affiliated centre, in this neither candidate has the choice to choose the diagnostic centre nor the diagnostic centre has the choice to choose the candidate.
The complainant had also approached this opposite party with such token no.18 and this opposite party had conducted all requisite tests like HBSAB, HCV and Chest X-ray and the HIV test was conducted in CLIA method and as per the GCC rules, the diagnostic centres are bound to conduct HIV test only in CLIA method. This method is fully automated without there being any human interference and this test is conducted with 4th generation equipment and once the sample enters into the machine, the machine will furnish the readings. This method of testing is mandated by GCC and the tests are performed as per NABL standards; that this opposite party had never given a report that the complainant is HIV positive, but only the report is stated as "reactive" . Since the complainant was not satisfied with the reports given by the opposite party no.1, this opposite party had referred the complainant to opposite parties 2 & 3 diagnostic centres which are also the approve diagnostic centres of GCC and also referred the complainant to M/s.Vijaya Diagnostic Centre which also uses the CLIA 4th generation equipments. The CLIA Test is most advanced technology which rarely shows false positive results and if the test is repeated after a gap of one or 1 ½ month, it may show negative report in some cases.
The opposite party further pleads that the complainant had submitted himself after a lapse of 3 months for the same tests to be conducted and the test was conducted on 1.9.2017 . This time , the result was "non Reactive". The same was intimated to the complainant. The said samples taken on 1.9.2017 were also sent to other diagnostic centres wherein the report was non reactive. The complainant is trying to mislead and confuse the CLIA test results with HIV confirmation. The Vijaya diagnostic Centre report dt. June,2017 also shows the CLIA test of the complainant as "Reactive". But howe ver, the overall HIV result is negative. The Test result of CLIA does not confirm HIV positive. Inspite of intimating and explaining clearly the differences between the reports, the complainant is making all false allegations with an intention to 4 extract money. The complainant had filed a false FIR bearing no.217 at Nalagandla police station for offences u/s.420, 406, 506 and 120 D of IPC. This opposite party had contested the said complaint and also obtained anticipatory bail and since there were adverse and false allegations made by the complainant, only to extract the money the complaint was closed and the present complaint is also filed only to extract the money and its repute. Hence the opposite party prayed that the complaint be dismissed with exemplary costs.
Opposite parties 2 & 3 did not choose to file written version hence their right to file written version was forfeited. However opposite party no.2 filed evidence affidavit.
04). Evidence Affidavit of the complainant filed. Exs.A1 to A17 marked on behalf of the complainant. Mr.P.Srinivas , Managing Director of opposite party no.1 filed Chief Evidence Affidavit and got marked Exs.B8 to B24. Dr.Ifthikaruddin Mohammad , Director of opposite party no.2 filed Chief Examination Affidavit and got marked Exs.B1 to B7. Written arguments of opposite party no.1 filed.
05). Written arguments of opposite party no.1 filed and it is represented that the same be considered as oral submissions.
Since there are no pleadings on behalf of opposite party no.2, the evidence filed shall not be considered, as it is settled principle that without there being pleadings any amount of evidence shall not be considered.
06). Now the points that arise for consideration are:
i. Whether the opposite parties have been deficient in their services?
ii. Whether the complainant is entitled for the reliefs sought in the complaint?
iii. If yes, to what extent? 07). Point no.i : The specific case of the complainant is that
he got a job offer from M/s.Ebrahim K.Kanoo Company, Kingdom of Bahrain as Administrator, I.T. Security which was subject to medical clearance from the approved diagnostic centres. In order to get himself tested, the complainant approached opposite party 5 no.1 diagnostic centre and got all the tests done on 10.6.2017 and the opposite party had given report of HIV test as " Reactive". The complainant was shocked to know that he was tested positive for HIV and as per the procedure stipulated by the company, the complainant got himself checked with opposite party nos.2 & 3 diagnostic centres and opposite parties 2 & 3 also confirmed the report of opposite party no.1. As such, the complainant got himself tested at A.P. State Aids Control Society, Durgabhai Deshmukh Hospital, Hyderabad on 14.6.2017 and similar test was conducted at Metropolis Healthcare Centre on 15.6.2017 and in both these reports he was tested negative; that due to such false report given by the opposite parties, the complainant's career has ruined and he had lost his future prospects and had suffered severe mental agony and again after a lapse of 2 ½ months when he got himself tested once again at opposite party no.2 hospital the reports were "non reactive" to HIV. In support of his case, the complainant got marked Exs.A1 to A17.
On the other hand the opposite party had opposed the complaint on the ground that there are 3 types of tests for confirmation of HIV in existence i.e. 1). TRIDOT; 2) ELISA ; 3) CLIA and as per the rules of GCC, they are bound to conduct the HIV test under CLIA method which is performed by a fully automated machine without there being any human interference and that the opposite party had not given any confirmation that complainant is HIV positive because HIV confirmation tests were not done on the complainant and that CLIA rarely shows false positive results and that there are 30 to 40 medical reasons for getting a false positive HIV antibody tests and that if the test if repeated after 1 or 1 ½ months it may show negative results. Hence the CLIA test is not taken as a conclusive test for HIV confirmation.
08). Ex.A1 is the provisional offer letter dt.29.5.2017, Ex.A2 is the test report issued by opposite party no.1 dt.14.6.2017 wherein the report for the test HIV Ag/Ab is shown as "Reactive" and the test is conducted under CMIA method. Ex.A3 is the report issued by A.P. State Aids Control Society, Hyderabad and the test conducted at Andhra Mahila Sabha wherein the result of HIV Antibody Test is reported as "Non-Reactive" which is dt.14.6.2017. Exs.A5 and A6 are the reports issued by Metropolis Health Care 6 Ltd. dt.15.6.2917and 16.6.2017 respectively. In both these reports the HIV test conducted on complainant under CMIA method and the result is "Non-Reactive" Ex.A9 is the report dt.1.9.2017 issued by Mesco Diagnostic Centre wherein the result is shown as "Non Reactive".
It is a fact borne by record that on 14.6.2017 the complainant's HIV test showed as "Reactive" and on 1.9.2017 the report was "Non-Reactive" and it is the specific contention of opposite party that they were governed by the GCC rules and were bound to conduct the HIV test under CMIA method. But unfortunately no such guidelines are filed. Another defence of the opposite party is that there are 30 to 40 medical reasons to get false positive results and in support of such contention filed Ex.B16. A perusal of Ex.B16 goes to show that the said study is done in relation to tests done under ELISA, IFA AND Western Blot . The very first lines of the said study clarify the same, but in the instant case, the opposite party had conducted the HIV test under CMIA method, as such the said literature is not relevant to the contention of the opposite party.
09). Under Ex.A15 the complainant has filed an expert opinion issued by Dr.K.Nagamani, Professor & HOD of Dept. of Micro Biology of Gandhi Hospital, Secunderabad, Telanagana wherein the expert had opined that "Test reports issued by CTC centre of NACO at Chest Hospital & Andhra Mahila Sabha, as per NACO guidelines should be considered as reliable & standard" and further clarified that as per NACO guidelines positive test is to be confirmed by two tests with different principles which are highly specific and declared as positive only if all the three tests are positive and in case of positive test report under CLIA method, it has to be confirmed by highly specific test which are approved by NACO.
Under Ex.A17, the complainant had filed the reply given by the Ministry of Health & Family Welfare, National AIDS Control Organization to an RTI application by the complainant and in the said Ex.A17, in answer no.1, the organization has made clear that as per HIV Counselling and Testing service (HCTS) Guidelines, it is mandatory to use three different principal rapid tests to confirm HIV diagnosis for the adults and children above 18 years. Further to a specific question: 'whether private hospitals are allowed to do 7 only one test and confirm the patient has HIV/AIDS' the answer is given as follows:
"The private hospitals those have MoU with NACO is called Public Private Partnership ICTC (PPP-ICTC). All the PPP-ICTC have been doing screening test for HIV with single rapid test kit. HIV screening test is not a confirmatory test for HIV. If the screening test became reactive; the individual is referred to the confirmatory sites for confirmation of HIV. At Stand Alone ICTC (SA- ICTC), three test principles are using for confirm HIV".
In such case, the opposite parties being private diagnostic centres are bound by the NACO guidelines. In the instant case when the result of HIV test done to complainant, under Ex.A2, A7 & A8 had been reported as "Reactive" it was obligatory on the part of the opposite parties to get the test confirmed by the other two tests as stipulated by NACO. It is not the case of the opposite parties that they are not governed by NACO. They are bound to follow the guidelines issued by NACO though they have conducted the test on the approval and guidelines of GCC. But being located in Telangana, India, they are bound by the law of the land.
10). Exs.A15 and A17 are substantial piece of evide nce to conclude that the opposite parties have been negligent in their services by not cross checking the "Reactive" report by conducting another two tests which has been stipulated by NACO and had left the complainant in fear that he might have been tested +ve for HIV.
Therefore based on the above discussion, we are of the view that the opposite parties failed to prove that as per the rules of GCC, they were bound to conduct HIV test only under CLIA method and further the opposite parties have been negligent in not following the 3 tests principle in case the report is "Reactive" thereby had violated the guidelines issued by NACO. Hence we hold that the opposite parties are negligent in not taking precautions to get the confirmation of 'Reactive Test' with other two tests and leaving the complainant in a confused state, thereby causing mental agony to him.
11). Points ii & iii : Now coming to the quantum of compensation, a person will become entitled to compensation only if the negligent act had resulted in any injury or loss. The 8 complainant has not filed any document to show that based on the Exs.A2,A7 & A8 reports issued by the opposite parties, he was denied the job offer and when after 3 months i.e. in Spetember,2017 when the HIV test reports were -ve (negative) the complainant had an opportunity to apply again or to any other company. It is not his case that due to such false report he would be denied job in any other company or for rest of his life ; that apart he has not filed any document to show his income in order to ascertain the monetary loss, nor it is his case that he is jobless. But ofcourse for the short period of 3 months he had suffered the fear that he might have contacted HIV but the said fear had been dispelled by the other tests conducted at other diagnostic centres. Therefore, we feel that a sum of Rs.3 lakhs would be reasonable towards compensation for the mental agony suffered by the complainant.
12). In the result, complaint is allowed in part directing the opposite parties jointly and severally to pay to the complainant a sum of Rs.3 lakhs as compensation and to pay Rs.25,000/- towards costs of litigation. Time for compliance is one month from the date of receipt of this order.
MEMBER(J) M EMBER(NJ)
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Dated: 11.1.2024 APPENDIX OF EVIDENCE Witnesses Examined For the complainant For the opposite parties Complainant filed evidence aff. Mr.P.Srinivas, Mg.Director of Opp.aprty no.1 evidence aff.
Dr.Ifthikaruddin Mohammad, Director of opp.party no.2 filed Chief Examination Aff.
Exhibits marked on behalf of the complainant:
Ex.A1: Provisional offer letter dt. 25.5.2017 issued by EbrahimK.Kanoo Company.
Ex.A2 : Photostat copy of medical report dt.10.6.2017 of complainant issued by opp.party no.1.
Ex.A3 : Laboratory Report Form dt. 14.6.2017 pertaining to A.P.State AIDS Control Society, Hyderabad Andhra Mahila Sabha.(True copy).
Ex.A4 : Test Report of complainant dt.16.6.2017 issued by Metropolis Health Care Ltd.
Ex.A5 : Test Report of complainant dt.19.6.2017 issued 9 by Metropolis Healthcare Ltd.
Ex.A6 : Test Report of complainant dt.19.6.2017 issued by Metropolis Healthcare Ltd.
Ex.A7 : Medical Test report of complainant dt. 29.6.2017 issued by Mesco Diagnostic Centre.
Ex.A8 : Medical Test report of complainant dt. 12.7.2017 issued by Mesco Diagnostic Centre.
Ex.A9 : Medical Test report of complainant dt. 1.9.2017 issued by Mesco Diagnostic Centre.
Ex.A10 : Mail correspondence.
Ex.A11 : Copy of legal notice dt.26.6.2017 issued on behalf of the complainant to opposite party no.1.
Ex.A12 : Copy of reply notice dt.12.7.2017 issued on behalf of opposite party no.1 Ex.A13 : Copy of calculation of amounts for compensation. Ex.A14 : Photostat copy of lr.dt.7.5.2018 from Dist. Medical & Health Officer to Mr.E.P.Naidu, Chittoor Dist. enclosing medical center list report.
Ex.A15 : Copy of lr.dt.3.2.2018 from Dr.K.Nagamani to the Superintendent , Gandhi Hospital and also lr.dt.7.2.2018 from the Superintendent Gandhi hospital to the Dist. Medical & Health officer. Ex.A16 : Copy of lr.dt.9.4.2018 from Dist. Medical & Health Officer , Hyd. to opposite party no.1 along with notice issued by District Medical & Health Officer, Hyd. Ex.A17 : Copy of lr.dt.20.8.2018 from Ministry of Health and Family Welfare , National AIDS Control Organisation.
Exhibits marked on behalf of the opposite parties :
Ex.B1 : List of medical tests reports of HIV. Ex.B2 : Laboratory test report dt.30.6.2017 of complainant issued by Vijaya Diagnostic Centre.
Ex.B3 : List of medical tests reports of HIV. Ex.B4 : List of medical tests reports of HIV. Ex.B5 : Medical literature .
Ex.B6 : Copy of letter dt.26.10.2017 from opposite party no.2 to the Station House Office, P.S.Nallakunta, Hyderabad.
Ex.B7 : Lr. from Sub-Inspector of Police, Nallakunta PS.,Hyd.
to the Asst. Commissioner of Police.
Ex.B8 : Photostat copy of Consent Form given by complainant. Ex.B9 : List of medical test result reports. Ex.B10 : List of medical test result reports. Ex.B11: List of medical test result reports. Ex.B12 : Photostat copy of medical report dt.29.6.2017 issued by opposite party no.2.
Ex.B13 : Medical test report dt.29.6.2017 issued by opposite party no.3.
Ex.B14 : Photostat copy of Laboratory Test Report dt.30.6.2017 of the complainant issued by Vijaya Diagnostic Centre. Ex.B15 : Photostat copy of medical report dt.12.7.2017 issued by opposite party no.2.
Ex.B16 : Medical literature .
Ex.B17 : Copy of legal notice dt.26.6.2017 issued on behalf of complainant to opp.party no.1. Ex.B18 : Reply notice dt.12.7.2017 issued by opp.party no.1. Ex.B19 : Photostat copy of lr.dt.16.10.2017 from opp.party no.1 10 to the Dist.Medical & Health Officer, Hyd.Dist. Ex.B20 : Photostat copy of Medical Test Report of complainant . Ex.B21 : Copy of lr.dt.26.10.2017 from opposite party no.1 to the Station House Office, P.S.Nallakunta, Hyd. Ex.B22 : Lr. dt.26.10.2017 from Mir Akram Ali to the Station House Officer, P.S.Nallakunta, Hyd. Ex.B23 : Lr. dt.26.10.2017 from Dr.Sabri Arouri to the Station House Officer, P.S.Nallakunta, Hyd. Ex.B24 : Final Report/Case Disposal Report dt.17.10.2017.
MEMBER(J) MEMBER(NJ)
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Dated: 11.1.2024 11