National Consumer Disputes Redressal
Gulshan Kumar vs Dr. Rajan & Ors. on 10 July, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 60 OF 2012 (Along with I.A. No.1 of 2012) (Against the order dated 21.07.2009 in Original Complaint No.5 of 2006 of the State Commission, Punjab) Gulshan Kumar Son of Som Prakash Resident of Village Raisin Sub Tehsil Nilokheri, Distt. Karnal .Appellant Versus 1. Dr. Rajan Deepak Hospital, Sarabha Nagar, Ferozpur Road, Ludhiana 2. Deepak Hospital Sarabha Nagar, Ferozpur Road Ludhiana Through its owner 3. Public Computer Laboratory Near Baba Khan Singh Chowk, Samrala Road, Ludhiana 4. United India Insurance Company Ltd. Divisional Office No.1 455, The Mall Ludhiana Through its Divisional Manager .........Respondents BEFORE HONBLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HONBLE MR. VINAY KUMAR, MEMBER For the Appellant : Mr. Gaurav Malhotra, Advocate PRONOUNCED ON: 10.07.2012 ORDER
PER MR.VINAY KUMAR, MEMBER This appeal is filed against the order of the Punjab State Consumer Disputes Redressal Commission, in Original Complaint No.5 of 2006. The State Commission has come to the conclusion that there is no merit in the complaint and has accordingly dismissed it. Appeal against this order has been filed with a long delay of 884 days. We therefore deem it necessary to consider the question of admissibility of the appeal before considering it on merit.
2. The appellant/Complainant has filed an application seeking condonation of this delay. It is seen that the impugned order was passed by the State Commission on 21.7.2009 and free copy of the order was received by the appellant on 8.8.2009. Thus, the copy of the order has reached the appellant within 18 days. Explaining the large delay thereafter, the application for condonation states that:-
4 That the appellant is a resident of Karnal and had gone to Ludhiana for treatment in the hospital of the respondent when he contacted the HIV+ when the respondent hospital had administered infected blood to the appellant. However being permanent resident of Karnal he returned to Karnal which is his parental house. It is stated that the appellants father is a poor villager and the appellant himself has no source of income and he was a student when he suffered the said disease HIV+ as stated above in the hospital of the respondent due to their negligence.
5. That in or around Karnal there is no charitable hospital from when the appellant could take the treatment i.e. dialysis which is done twice a week. For this treatment the appellant has to go from Karnal to Ludhiana and come back. The mode of transport adopted by the appellant is state transport buses. The to and fro distance is more than 360 km. It is stated that from the residence village Raison the appellant comes to Kurukshetra bus stand in Haryana and the distance between raison to Kurkushetra is about 25 km. From Kurukshetra (Haryana), the appellant goes to Ludhiana (Punjab) via Ambala by state transport buses covering the distance of 155 km. The appellant has two weekly days i.e Wednesday and Saturday fixed for dialysis in the Christian Medical College & Hospital, Ludhiana. The appellant via same route returns by the same mode of transport on the following days of the week i.e. Thursday and Sunday. It is stated that it takes about 5 Hrs for dialysis alone in the hospital. It is also stated that as per the doctors advice their cannot be any break in the treatment otherwise the appellants life would be in danger.
3. From a reading of the above explanation, the only impression that can be drawn is that the appellant being a HIV+ person is required to under-go dialysis twice a week, which requires him to travel between his residence in Karnal and the hospital in Ludhiana. But, it gives no idea of whatever difficulty he confronted, which led to a huge and abnormal delay in filling the appeal. In a subsequent para the application also says that the relevant paper required for filing of the appeal were given by the appellant to his Advocate in January, 2012. The application gives no explanation why the papers could not be given to the lawyer in or around August 2009, after he had received the impugned order. It gives no idea of the circumstances, if any, under which he was compelled to wait till January 2012. Except for medical details of periodic dialysis, the application is totally silent on the intervening period between August, 2009 and January, 2012 i.e. a period of two and half years.
4. The relevant provision, in the context of delay in filing of appeal is contained in Section 19 of the Consumer Protection Act, 1986. The provision lays down:-
19. Appeals. Any person aggrieved by an order made by the State Commission in exercise of its powers conferred by sub-clause (i) of clause (a) of section 17 may prefer an appeal against such order to the National Commission within a period of thirty days from the date of the order in such form and manner as may be prescribed:
Provided that the National Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period:
[Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the State Commission, shall be entertained by the National Commission unless the appellant has deposited in the prescribed manner fifty per cent. Of the amount or rupees thirty-five thousand, whichever is less.]
5. In the absence of any details we are in no position to ascertain whether the appellant had sufficient cause for taking such a long time, when the law allows him only 30 days to file the appeal. The appeal is therefore liable to be dismissed on the ground of limitation alone.
6. Coming to the merits, the case of the complainant was that he was treated in OP-2/Deepak Hospital from 17.4.2004 to 25.4.2004 for stones in the gall bladder. Before the operation, he was put on dialysis for 5 days. He was also administered blood arranged by the hospital. Even after his discharge, he continued to get dialysis done in this hospital. During this process, he was given 25 units of blood arranged by the hospital. Again, from January to April 2005, he was treated in this hospital, as an outdoor patient. When his health worsened, he was again admitted to OP-2 hospital from 2.5.2005 to 27.5.2005. In this period also he underwent dialysis on several occasions and was administered 18 units of blood. Due to further deterioration in his condition, he was tested for HIV on 27.6.2005. The result showed that he was HIV positive.
7. The complaint petition says The petitioner was treated by Dr. Rajan of Deepak Hospital Ludhiana from 16.4.2004 and during this period he was administered almost 50 units of blood and before the start of the admission, the petitioner was detected HIV negative. The petitioner did not get any treatment from any other hospital during his treatment except by Deepak Hospital. The petitioner became patient of HIV positive on account of the administrating/ transfusing HIV infective blood by the Deepak Hospital authorities, as they did not bother to get the blood tested before transfusing the same in the body of the petitioner.
8. From the above averment in the complaint petition, it is clear that the Complainant is making a presumption that his subsequent HIV+ condition was directly caused by transfusion of blood in OP hospital, which was already HIV infected. However, the conclusion reached by the State Commission, after consideration of the evidence led by the two sides, is that:-
But in the facts of the present case, the complainant has failed to prove by positive evidence if his life was converted from HIV negative to HIV positive by the act and conduct of the respondents alone and there was no possibility of any other route.
9. The State Commission has also concluded that:-
a) The Complainant has not proved if the introduction of HIV+ cells in his body could be possible only from the transfusion of infected blood on his person in the OP hospital.
b) Transfusion of blood in OP hospital between 17.4.2004 and 26.4.2004, if any, had not produce any adverse effect on the Complainant as medical reports for the period of April, 2005 produced before the State Commission as Ext.P/200 to P/203 revealed that his HIV report was negative.
c) The OPs have proved that they had followed the requisite procedure in the course of transfusion of blood given to the Complainant.
d) Transfusion of blood in some other hospital was very much possibility in the background of the end stage kidney problem, which he suffered from and for which dialysis would be necessary.
10. We have perused the records and heard Mr. Gaurav Malhotra, Advocate for the appellant/Complainant. His entire emphasis was on the blood report prior to hospitalization at OP hospital, which had shown the patient to be HIV negative. In the appeal memorandum also the same point is stressed. In fact, the whole case of the Complainant before the State Commission was clearly based on the two blood reports of 16.4.2004 and 27.6.2005. The first report, as repeatedly claimed by Complainant, had found him HIV negative and the second HIV positive.
11. We however do not accept the contention of the appellant/Complainant that because of these reports the burden of proof would shift from the Complaint to the respondents, to show that the HIV infection was not caused by any act of carelessness or negligence on the part of the respondents. The onus to prove his case before the State Commission was on the Complainant himself. We also do not accept the contention of the appellant/Complainant that the State Commission should have asked for opinion of some neutral expert in the matter. If in his view expert opinion was necessary, the complainant should himself have examined one.
12. For the reasons detailed above, we find this appeal to be devoid of any merit. The appeal is therefore, dismissed on the grounds of limitation as well as merit. The order of the Punjab State Consumer Disputes Redressal Commission, in Original Complaint No.5 of 2006 is confirmed.
.Sd/-
(V.B.GUPTA,J.) PRESIDING MEMBER Sd/-.
(VINAY KUMAR) MEMBER s./-