State Consumer Disputes Redressal Commission
1. Ms. Seethal C. Sreedharan vs Santhosh Kumar K.N. on 13 January, 2012
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/10/623 (Arisen out of Order Dated 11/08/2010 in Case No. Complaint Case No. CC/09/22 of District Pathanamthitta) 1. M/S SEETHAL.C.SREEDHARAN SUPERVISOR,DEPT.OF MICROBIOLOGY,DDRC WELLSPRING PATHLAB DIAGONOSTIC.OPPO.CENTRAL HOSPITAL,PATHANAMTHITTA PATHANAMTHITTA KERALA 2. DEVALATHA MSC ,MICROBIOLOGY PATHANAMTHITTA KERALA 3. THE DIRECTOR DDRC WELLSPRING PATHLAB DIAGNOSTIC,3373B,MENON COMPLEX ERNAKULAM KERALA ...........Appellant(s) Versus 1. SANTHOSH KUMAR.K.N KOLOTHU MANNIL VEEDU,MAKKAMKUNNU PATHANAMTHITTTA KERALA ...........Respondent(s) BEFORE: SRI.S.CHANDRAMOHAN NAIR PRESIDING MEMBER PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO. 623/10
JUDGMENT DATED : 13.01.2012
PRESENT:
SHRI.S. CHANDRA MOHAN NAIR : MEMBER
1. Ms. Seethal C. Sreedharan,
Supervisor, Dept. of Microbiology,
DDRC Wellspring Pathlab Diagonstic,
Opp. Central Hospital, Pathanamthitta.
2. Devalatha,
M.SC. (Microbiologist)
Dept. of Microbiology,
DDRC Wellspring Pathlab Diagonstic, : APPELLANTS
Opp. Central Hospital, Pathanamthitta.
3. The Director,
DDRC Wellspring Pathlab Diagonstic,
3373 B, Menon Compex,
Ernakulam, Kochi - 682 020.
(By Adv. S. Reghukumar)
Vs.
Santhosh Kumar K.N.
Kolothu Mannil Veedu, Makkamkunnu, : RESPONDENT
Pathanamthitta.
(By Adv. S.R. Arun)
JUDGMENT
SHRI. S.CHANDRA MOHAN NAIR : MEMBER The order dated:11.8.10 of CDRF, Pathanamthitta in CC No. 22/09 is being assailed in this appeal by the opposite parties who are under directions to pay to the complainant a sum of Rs.25,000/- as compensation and cost of Rs. 1,000/- within 1 month from the date of receipt of the order failing which they are under directions to pay interest also @ 9% from the date of order till payment.
2. The complainant has approached the Forum stating that his 4 years old daughter was taken to the opposite parties for conducting preliminary test of 'Hepatitis B' and that after conducting the test, the opposite parties issued the result showing 'positive' and as advised by the opposite parties, a confirmatory test of Hepatitis B, (ie. Elisa test) was also conducted and it was also reported as positive. Being doubtful about the results, the complainant approached the Lakeshore Hospital at Kochi and on further test, result was non-reactive. He had repeated the test at State Public Health and Clinical Laboratory wherein also it was found that the result was negative. Alleging deficiency in service on the part of the opposite parties in giving wrong results the complainant prayed for directions to the opposite parties to pay a sum of Rs.16,165/- being the expenses incurred by him and Rs.3,00,000/- towards compensation and cost.
3. The opposite parties filed version denying the allegations. It was submitted that the complaint was not maintainable and that the test result given on 30.9.08 was correct. It was also stated that they were unknown of the results obtained by the complainant either from the Lakeshore Hospital or from the State Public Health and Clinical Laboratory. However, the opposite parties admitted that the result given was Hepatitis B positive and that the complainant's daughter was undergoing treatment for jaundice and she was taking regular routine tests consequent to medication. The opposite parties had also submitted that the complainant was trying to tarnish the image and goodwill of the opposite parties.
4. The evidence consisted of the oral testimony of complainant as PW1 and Exts.A1 to A6 on his side. On the side of the opposite parties DWs 1 to 4 were examined and Exts. B1 to B15 were marked.
5. Heard both sides.
6. The learned counsel for the appellants/opposite parties vehemently argued that the order of the Forum below is perse illegal and unsustainable. It is his very case that PW1 the complainant himself had admitted that his daughter was given Ayurvedic medicines and that she had jaundice for which treatment was taken.
The learned counsel has also advanced the contention that the liver function test was found positive which would indicate that there was jaundice/hepatitis. The learned counsel invited this commission's attention to the fact that there is a chance of the result being positive in certain cases and that would be changed in due course. Inviting our attention to Exts. B13 and B15 he advanced the contention that HBS Ag is cleared within a few months in self limiting illness and the result showing negative in subsequent test could be because of the above reasons. He has also submitted that in certain cases false negative is also probable. Contending for the position that the opposite parties had conducted the laboratory test strictly according to the practice and procedures, the learned counsel submitted that there was absolutely no deficiency in service on the part of the opposite parties and hence the order of the Forum below is only to be set aside.
7. On the other hand, the learned counsel for the respondent/complainant submitted that the complainant had taken his daughter to the opposite parties Laboratory for conducting the test for HBS Ag and as the test result was positive and as he was advised Elisa test, the Elisa test was done and in the Elisa test also, the opposite parties had given the result as positive. It is contended by the learned counsel that the complainant being Seeptical about the results, he took his daughter to Lakeshore Hospital and it was found that HBS Ag was non-reactive and for confirming the test result, the complainant had taken his daughter to the State Public Health and Clinical Laboratory where it was confirmed that the result was HBS Ag negative. The learned counsel has submitted that due to the wrong result given by the opposite parties, the complainant was put to much tension, agony and other hardships. It is also argued by the learned counsel that HBS Ag is a non-curable disease and if the complainant had given medicines to his daughter as per the results given by the opposite parties, his daughter would have been put to untold miseries. He has also argued that though the complainant had prayed for the reimbursement of the expenses and compensation of Rs.3,00,000/-, the Forum below had awarded only Rs. 25,000/- which is very much on the lower side.
8. On hearing both sides and also on perusing the records, it is found that the complainant had taken his daughter to the opposite parties on 30.9.08 for conduction the test of Hepatitis B. The test result of HBS Ag CARD shows as "Weak positive" which is evident from Ext. A1. It is also seen that ELISA test is recommended in the said result and on 1.10.08, the opposite parties have given the result as positive after conducting the HBS Ag (ELISA) Test. The learned counsel for the appellants had argued that the opposite parties had conducted the test very correctly and had given the results. It is also argued that the complainant's daughter was undergoing treatment for jaundice and that there was a chance of false positive HBS Ag result and the result would vary according to the kits used for the test. He has also argued that the HBS Ag positive result if persists for more than 6 months then only it can be considered as positive and in certain cases it will be cleared automatically. How ever it cannot be understood as to how the result that was positive could be negative on the very next day even if it is admitted that there can be false positives and false negatives as argued by the learned counsel for the appellants. In Ext. A2 series it is seen that the child was taken to Lakeshore Hospital on 4.10.08 itself and after conducting Elisa test the result was non-reactive. Ext. A3 dated 2.12.08 also confirms the result given by the Lakeshore Hospital. We find that even if admitted that there can be false positive, the same will not be varied within 1 or 2 days. The trauma undergone by the complainant can be imagined when he came to know that his child was having hepatitis B which is reportedly a non-curable disease. It is also to be seen that the treatment for hepatitis B is highly expensive and according to the learned counsel for the respondent/complainant, the hepatitis B virus infected person will have to undergo treatment all through his life. In the above said facts and circumstances, the findings and conclusions of the Forum below are to be upheld. The Forum below has ordered only Rs.25,000/- as compensation which is not at all on a higher side. Hence the appeal preferred by the opposite parties is liable to be dismissed and it is done so accordingly.
In the result, the appeal is dismissed. The order dated: 11.8.10 of CDRF, Pathanamthitta in CC No. 22/09 is confirmed.
In the facts and circumstances of the present appeal, the parties are directed to suffer their respective costs.
The office is directed to forward the LCR to the Forum below along with a copy of this order.
S. CHANDRA MOHAN NAIR: MEMBER DA [ SRI.S.CHANDRAMOHAN NAIR] PRESIDING MEMBER