National Consumer Disputes Redressal
Ravindra Dnyaneshwar Patil & Anr. vs Dr. Vinay Tule on 17 July, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 1291 OF 2017 (Against the Order dated 03/05/2017 in Complaint No. 13/2015 of the State Commission Maharastra) 1. RAVINDRA DNYANESHWAR PATIL & ANR. R/O. PLOT NO. 84, NEW LOK-KALYAN SOCIETY, NARENDRA NAGAR, NAGPUR MAHARASHTRA ...........Appellant(s) Versus 1. DR. VINAY TULE THE PROPRIETOR, EUGENIKS GENETIC LABORATORY, OFFICE AT 106/107/A, LOKMAT BHAWAN, RAMDASPETH, NAGPUR MAHARASHTRA 2. SMT. SANGEETA W/O. RAVINDRA PATIL, RESIDENT OF PLOT NO. 84, NEW LOK-KALYAN SOCIETY, NARENDRA NAGAR, NAGPUR MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. DR. S.M. KANTIKAR,PRESIDING MEMBER
For the Appellant : Mr. Yogesh Mandpe, Advocate For the Respondent :
Dated : 17 Jul 2017 ORDER
1. The instant appeal is filed by the appellants/complainants, Mr. Ravindra Dnyaneshwar Patil (Complainant No. 1/Appellant No. 1) and his wife Mrs. Sangeeta (Complainant No. 2/Appellant No. 2) against the impugned order dated 3.5.2017 passed in Complaint Case No. CC/15/13 whereby Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench at Nagpur (in short, 'the State Commission') has dismissed the complaint filed against Dr. Vinay Tule, the OP.
2. The brief facts relevant for the disposal of the appeal are that the complainants, an educated couple, carry Sickle Cell disease, a blood disorder. They have one son aged about 10 years. Complainant No. 2 conceived for second pregnancy and due to apprehension of Sickle Cell disease, (SS Pattern) to the foetus ,the couple consulted Dr.Bharati Taori , a Obstetrics and Gynaecologist at Sneh Nursing Home, Nagpur. To rule out the possibility of any SS blood disorder to the foetus, she advised the complainant No 2 to undergo a pre-natal diagnosis by DNA test. It was 3rd month of pregnancy. Dr. Taori collected the Chorionic Villus Biopsy (CVB) sample from the womb of Complainant No.2 and sent it for examination to the OP's laboratory on 15.7.2009. The OP on examination of the sample issued a report dated 13.7.2009, which revealed the foetus as a Sickle cell carrier and has Sickle cell trait. As, the report did not show the sickle cell SS pattern, therefore, Complainant No 2 continued with the pregnancy and on 20.1.2010, she delivered a male child.
3. At the birth, the child was found to be pale; therefore, the complainants took second opinion from Dr. A. R. Gujjalwar, Child Specialist at Dhantoli, Nagpur, who advised similar test as advised by Dr. Bharati Taori. He referred the Complainant-2 to the Pathologist Dr. A. L. Deshmukh, who conducted the similar test on the child's blood sample and issued a report on 18.5.2010, which revealed that the child was suffering from 'SS Pattern Sickle cell trait'. It came as a surprise to the complainants to see the report which was contrary to the report dated 13.7.2009 given by OP. Thereafter, the complainant approached OP's laboratory on 20.8.2010, who again examined the blood sample of the child and issued the report as child is affected with both sickle genes as abnormal a Sickle Cell Anaemia. Thus, it was alleged that, the sample was sent by Dr. Taori on 15.7.2009 to the OP laboratory but the laboratory test report bears date as 13.7.2009. The two contradictory reports clearly show that OP neither examined the 1st CVB sample which was sent by Dr. Taori on 15.7.2009, nor gave report of the same sample. It was further alleged that, due to negligence and wrong report, the complainants have suffered. If the report would have been correct, Complainant No. 2 would not have continued her pregnancy for nine months but, would have terminated the pregnancy. The OP, thus, cheated the complainants and caused monetary loss and agony to their entire family. The complainants have to take the child to various hospitals for the treatment of Sickle Cell Anaemia and for the severe pain. It was further alleged that the OP was not a qualified doctor, and was not registered with Medical Council of India (MCI) or Maharashtra Medical Council(MMC), and therefore he could not set up genetic laboratory and examine the samples and issue reports. He was running the laboratory in contravention of Indian Medical Council Act, 1956, for which the complainants have also initiated proceedings before Hon'ble High Court Bench at Nagpur. Moreover, the OP has managed to get fabricated licence documents from Health Officer, Nagpur Municipal Corporation,(NMC) Nagpur under the Bombay Nursing Home Regulation Act, 1949, by cheating the NMC, for which he was liable for prosecution under Sections 420 and 471 of IPC. For this background, complainants, on 8.1.2015, filed a complaint before Maharasthra State Consumer Disputes Redressal Commission, Circuit Bench (herein 'State Commission') at Nagpur on several grounds and claimed compensation of Rs. 95 lakhs under different heads.
4. The OP filed a written version before the State Commission and denied the allegation of medical negligence. He raised preliminary objection about maintainability of the complaint i.e. the complaint was barred by limitation, as it was filed in the month of January 2015, though the alleged cause of action had arisen on 27.07.2012. It was not a continuing cause of action. It was further pleaded that, OP is an experienced and qualified to conduct genetic tests and to run the genetic laboratory, the laboratory of OP was registered under the Bombay Nursing Home Registration Act, 1949. The registration certificate for OP's genetic laboratory was issued by the Competent Authority of Govt of Maharashtra under section 19(1) of Prenatal Diagnostic Techniques(Regulation and Prevention of Misuse) Act,1994 ( in short " PNDT act"). The DNA test was carried out by OP on the CVB sample received from Dr. Taori on 15.7.2009. The prenatal diagnostic test was performed by a highly sophisticated instrument, which provides different bands (spectrum) for sickle, normal or mutant gene. The report was issued based upon the nature of bands which appeared in the gel electrophoresis. The report was suggestive in nature as 'carrier of Sickle cell anemia and Sickle cell trait'. Report was issued on 15.9.2007, but due to inadvertent typographic mistake date 13.9.2007 was mentioned. The test was performed as per standard protocol and technique using Amplification Refractory Mutation System (ARMS) PCR( Polymerase Chain Reaction) for DNA analysis. All precautions were taken during DNA testing, therefore, there was no negligence or any short comings in either performing test procedure or interpretation of the result. The accuracy of test carried will be 95-97%. The OP denied that, the report dated 18.5.2010 issued by Dr.A.L.Deshmukh was contrary to report issued on 15.7.2009, because both the reports were issued on different samples. There is always possibility of maternal cell contamination of CVB sample which was an indirect sample, whereas there will not be any possibility of contamination of blood sample of the child as it was a direct sample.
5. Initially, the State Commission dismissed the complaint for non-prosecution vide order dated 20.11.2015. Being aggrieved by the order passed by the State Commission, the complainants filed first appeal No. 149/2016 before this Commission for restoration of complaint. Vide order dated 30.11.2016, this commission allowed FA 149/2016 with costs and remitted back the matter to the State Commission for adjudication on merits. The State Commission held that the complaint deserves to be dismissed as barred by limitation. Nevertheless, in the interest of justice, the State Commission proceeded to decide Complaint on merits also. The State Commission after consideration of pleadings and analysis of evidence, did not find the OP negligent in conducting test and its reporting, and accordingly dismissed the complaint. Being aggrieved by the impugned order of the State Commission, the complainants have filed this Appeal.
6. I have heard Mr. Yogesh Mandape Learned Counsel for the complainants on the question of admission of this Appeal at length. Learned counsel reiterated the allegations and facts mentioned in the complaint. He vehemently argued that OP is not qualified, he has cheated the complainants as well as the NMC, and the CVB report was negligently issued by OP on 13.7.2009 without performing the DNA test. He referred to the test reports issued by the OP and Dr.A.L.Deshmukh. Asserting that the complaint was not barred by limitation as prescribed under Section 24 A of the Consumer Protection Act, 1986, the Learned Counsel submitted that time was continuous because of pursuing remedy before wrong fora, viz the Hon'ble High Court and Supreme Court.
7. I have Carefully the documents and evidence of both the parties, the record , including those which were filed in the High Court in Criminal Writ Petition, the order of Hon'ble Supreme Court in SLP, the qualification certificates of OP, and the relevant medical literature on Genetics and CVB.
i) The first contention of learned counsel for appellants is that, the order of State Commission is erroneous in as much as, on 15.7.2009, the Chorionic Villus biopsy (CVB) sample drawn by Dr.Taori was given to the OP laboratory, whereas the report issued by OP was dated 13.7.2009. Thus, the OP had either given another patient's report or given a false report without performing any test. I am convinced that it was a typographical error. In this regard, the State commission had recorded that the OP has given proper explanation that due to typographical mistake, wrong date 13.7.2009 was mentioned instead of 15.07.2009. I have perused the Form G "Form of Consent" (Annexure P-50) signed by the complainant-2 on 15.07.2009, also OP had maintained Form C i.e. Maintenance of Record by Genetic Laboratory (Annexure P-51) as prescribed under PNDT Act. It clearly shows the name of Sangeeta Patil (Complainant-2) at Serial No. 36 against date as 15.7.2009. Therefore, it was an inadvertent typographic error, not a negligent act.
ii) Secondly, on the qualification of the OP, the complainants grouse was that the OP is not duly qualified for running a genetic laboratory. On the said grievance, complainants have filed a Criminal writ petition No. 112 of 2013 before High Court at Nagpur Bench. I have perused the qualifications and credentials of OP, from where it transpires that, OP is qualified as MSc (Microbilogy) with PhD (1988). Thereafter, he underwent post doctoral training Prenatal diagnosis and genetics in reputed institutes in India viz AIIMS, National Institute of Health and Family Welfare, New Delhi and in the Institute of Medical Genetics at Yorkhill, Glasgow, UK. Since 2008, he is a PhD supervisor at Rastrasant Tukadoji Maharaj Nagpur University. The High Court being satisfied with his qualification and licence; vide its order dated 18.06.2013 had dismissed the Criminal WP 112/2013. I have perused MCI letter which also does not hold the OP negligent. The perusal of the registration certificate, shows that, the registration certificate for OP's genetic laboratory was issued by the Competent Authority of Govt of Maharashtra under section 19(1) of PNDT Act. The laboratory was also registered under Bombay Nursing Home Registration Act, 1949 at City Administration of Nagpur. In my view, OP has requisite qualification and experience to run a Genetic Laboratory. He possesses proper registration and licence.
iii) The contention of learned counsel for the complainants that, the OP had given wrong report of CVB sample and hence it was a case of medical negligence. It should be borne in mind that, the patient/complainant -2 had consultation with a Obstetrician and Gynaecologist Dr.Taori, who had drawn CVB sample and sent to OP laboratory for DNA analysis. The OP performed the test as per the Standard guidelines/protocol of DNA analysis. I have perused the CVB report, dated 15/13.7.2007. The OP report of CVB was as under:
"Fetus is a sickle cell anaemia carrier, and has sickle cell trait. Fetus has only one abnormal sickle gene. The fetus is not likely suffer from disease."
8. In my view, the report issued was as suggestive one but it appears that Dr.Taori took it as a conclusive one. The report Annexure A-4 clearly mentioned about limitation of the testing as "Although all precautions are taken during DNA tests the currently available data indicate that the technical error rate for all types of DNA analysis is approximately 1%. It is important that all clinicians of persons requesting DNA diagnostic test are aware of these data before acting upon these results." Thus, the report had to be correlated clinically.
9. Therefore, under such circumstances, it was the duty of Dr. Taori to advise further investigations or seek another opinion or repeat the test. There is nothing on record or any explanation from Dr.Taori as to why she did not call for the second opinion from another laboratory to confirm the same. The complainants have not impleaded Dr.Taori as a necessary party, for the reasons best known to them. Hence, in my view, there was no negligence on the part of OP, who had adopted standard test procedure and issued the report on the basis of bands appeared on gel electrophoresis. Thus, no liability for the alleged suffering of the child be fastened on the OP.
10. Regarding the cause of action, I am in agreement with the observations made by the State Commission. I draw support from the judgment of Hon'ble Apex Court in V. N. Shrikhande (Dr.) Vs. Anita Sena Fernandes (2011) 1 SCC 53. In that case, it has been held:
"In that case, there was question as to on which date cause of action arises in case of medical negligence. It is held that where effect of negligence is manifest, the cause of action arises on the date on which negligence was committed. However, if the effect is latent; cause of action arises when harm or injury is discovered by exercising reasonable diligence."
11. It is an admitted fact that, initially DNA test was performed on 15.7.2009 on the CVB sample. The child was born in the month January, 2010. Thereafter, in August 2010, child's blood sample was examined by another Pathologist and the OP. Therefore, the complainants should have filed the complaint on receipt of the 2nd report from the OP but, the complaint was filed only on 8.1.2015. Thus, the decision in V. N. Shrikhande (Dr.) (supra) is on all forms to the facts of the instant case. There was delay of more than two years in filing the complaint, which according to the Learned Counsel for the complainants due to choosing of a wrong forum. He submitted that the complainants initially filed a criminal writ petition before Hon'ble High Court Bench at Nagpur, which was dismissed on 18.6.2013 with following observations:
"If the petitioners are so advised, they can very well file a suit for damages and compensation by naming the persons, who according to them, have committed medical negligence or if permissible in law, approach the appropriate Consumer Forum".
12. Being aggrieved by the order of High Court, complainants preferred SLP before Hon'ble Supreme Court, which was dismissed on 24.02.2014. It is to be noted that, the Hon'ble High Court had observed that a complaint could be filed before the Consumer Commission, if permissible under law. But, after dismissal of Writ Petition, the complainant took almost 1½ years to file a complaint before the State Commission. Moreover, the State Commission observed that, the application filed by the complainants for condonation of delay was very vague. Therefore, it was not a case of the continuing cause of action. Hence, the complaint is liable to be dismissed as barred by limitation.
13. On merits, the main question for consideration is whether there was any medical negligence on the part of the OP while performing his duty viz testing of CVB sample, and what are the possibilities to get such report on CVB study for DNA analysis? In this context, I rely on the references from the standard books, research articles on Genetics and Prenatal diagnosis. The relevant text of the research article titled "Testing for Maternal Cell Contamination in Prenatal Samples" (Journal of Molecular Diagnostics, Vol. 9, No. 3, July, 2007) is reproduced as below:
"The potential presence of maternal cells in CVS or AF samples poses a significant preanalytical risk for prenatal misdiagnosis. This is particularly of concern with sensitive polymerase chain reaction (PCR)-based molecular assays that may lead to a positive result based on the presence of a very small amount of mutation-positive maternal cells."
"MCC is more common with clinicians who perform less than 50 amniocenteses annually and these physicians also have a higher rate of fetal loss after the procedure.
"The risk of MCC may increase with the number of needle passes, penetration of the placenta, and lack of ultrasound guidance during the procedure."
"In a CVS tissue specimen, however, both cell types are cultured when chorionic villi are not well separated from the maternal decidua. Thus, CVS cultures present the highest level of potential MCC."
"Even low levels of MCC may interfere with correct molecular diagnosis because PCR can, under optimized circumstances, detect a subpopulation of cells at levels of 0.1%."
MCC cannot be reliably assessed by eye because the visual presence of erythrocytes does not necessarily mean that these cells are of maternal origin, and, conversely, the visual absence of peripheral blood in the sample does not mean that the sample is exclusively fetal."
CVS is performed at ~ 11 weeks of gestation and has a higher overall risk of MCC (˂5%), because it is difficult to thoroughly remove the maternal decidua from the fetal cells."
"For CVS, culture actually increases the risk of detectable MCC because both maternal and fetal cells are part of the same tissue sample. In general, the risk of MCC is greater early in gestation, because of the nature of the specimen obtained, but also because of the relative paucity of cells, in which the admixture of maternal cells may be relatively larger."
"It has been suggested that misinterpretation of a diagnostic prenatal test becomes a more likely possibility at 1 to 2 % MCC. In a very simple variable number of tandem repeats -PCR based method, a level of 2 % MCC could unequivocally be identified with two variable number of tandem repeats and identification by regular gel electrophoresis. Thus, even without ex-pensive instruments, this level of detection should be achievable for robust assays..."
14. Another article on Risk assessment and therapy, revealed that 'CVS is now considered a reliable method of prenatal diagnosis, but earlier at its formative stages, some incorrect results were reported. The major sources of these errors included maternal cell contamination and misinterpretation of mosaicism confined to the placenta. Therefore, although the foetus and placenta have a common ancestry, chorionic villus tissues it may not always reflect foetal genotype. Faint band seen with mutant Sickle Cell approximately could be due to maternal contamination'. It is a known that very little amount of maternal DNA present in the foetal sample can amplify with either of ARMS-PCR primer and forms a band visible on gel electrophoresis, resulting in misdiagnosis.'
15. In another Special Article, titled, "Laboratory Guidelines for Detection, Interpretation, and Reporting of Maternal Cell Contamination in Prenatal Analysis, from the Journal of Molecular Diagnostics, Vol. 13, No. 1, January, 2011' it is opined that:
"Interpretation of prenatal analyses is one of the most complex areas in genetic testing. Clinicians use invasive method that may increase the risk of pregnancy loss, to obtain chorionic villus smplings (CVS) or amniotic fluid (AF) for prenatal molecular....."
"CVS analysis presumes that the fetal karyotype/genotype is reflected accurately in the extraembryonic tissues. Contamination of a CVS sample with cells of maternal origin may result in analysis of the maternal rather than the fetal karyotype or genotype, especially when the sample size is small."
"12. At least 5% MCC must be routinely detectable by the clinical laboratory. This percentage is recommended as the upper limit based on the fact that erythrocyte admixture of just a few percent is readily visible by eye, and that incorrect interpretation of a PCR-based diagnostic prenatal test has been reported even at a level of 1% to 2% MCC, with increasing likelihood at higher percentages."
Thus, according to several research papers, during years 2005-2008 many research institutes in USA and UK, the maternal cell contamination (MMC) standardisation was under research and trials. Therefore, in most of the research studies , it was observed that, even low levels of MCC may interfere with correct molecular diagnosis. Due to MCC with the foetal tissue, the resultant a sickle or normal and mutant band on Gel electrophoresis were seen. The medical text books on Genetics explained that, 'Although precautions are taken during Molecular Genetic testing, the currently available data indicate that technical error rate for all types of molecular DNA analysis is approximately 2%'.
16. It is an admitted fact that OP was running the genetic laboratory for more than two decades. He is qualified and experienced one to run the genetic laboratory. The CVB analysis performed by ARMS PCR DNA method, the OP issued report that there was no likelihood of foetus suffering from the disease. It is also pertinent to note that, in the DNA diagnosis possible technical error rate is approximately 1-2%. The complainants have not produced any expert opinion on the possibility of maternal cell contamination (MCC) in CVB sampling. Due to MCC, there are chances of getting result (band in electrophoresis) as sickle cell carrier i.e. trait. I have perused the test reports of OP laboratory dated 13/15.09.2007 and 20.08.2010, and also perused the report of Deshmukh Laboratory dated 18.05.2010. The OP has performed the ARMS PCR for CVB sample and after analysis gel electrophoresis technique as on the basis of bands had appeared , that 'it has only abnormal sickle gene, i.e the foetus was a sickle cell anaemia carrier'. It is pertinent to note that the process of taking tiny sample (4mg) itself is complicated one, therefore, the combination of mother's tissue and foetus tissue is a routine phenomenon. Thus, in the present case, the presence of Sickle normal band could be attributed to mother's tissue. Subsequently on 18.05.2010, Hb electrophoresis done by Dr.A.L.Deshmukh revealed Faint F band, and a Band S, thus he gave the impression as 'SS' pattern-Sickle Cell Trait. On 20.08.2010 the OP performed ARMS PCR on blood sample of child and found the presence of only mutant gene. It should be borne in mind that, the samples tested were CVB prenatally, whereas the test on blood was performed in postnatal period. Both the reports stand on different footing. The test results depend upon number of factors like type of sample, method of collection and the volume of sample. It should be borne in mind that, the CVB sample is collected by indirect method i.e USG guided, usually the sample volume will be very less and it will very tiny. It shows maternal cell contamination (MCC) also, whereas the blood sample is direct one, there is no chance of such MCC contamination. As discussed in the various articles (supra) due to MCC, the outcome of ARMS PCR will be single gene as of mother's cell. The results are interpreted on the basis of appearance of bands and its size in the gel electrophoresis. In my view, OP has performed the test as per standard ARMS PCR protocol, and interpreted the Bands appeared in gel electrophoresis. I have perused the CVB report and the photograph of Gel electrophoresis, it shows a single Sickle mutant band, thus it was reported as "Carrier of Sickle Cell Anemia" i.e. Sickle Cell Trait. Therefore, I do not find any shortcomings or negligence on the part of OP either in conducting ARMS-PCR procedure or during its reporting.
17. Catena of judgments of Hon'ble Supreme Court and from abroad had discussed about what constitutes medical negligence. In Kusum Sharma Vs. Batra Hospital (2010) 3 SCC 480, it is laid down that, Negligence cannot be attributed to a doctor so long as he performs his duties with a reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the Medical Profession.
18. In the case Maynard v. West Midlands Regional Health Authority the words of Lord President (Clyde) in Hunter v. Hanley 1955 SLT 213 were referred to and quoted as under:-
"In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men...The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care...".
19. Similarly, in the case of Achutrao Haribhau Khodwa and Ors. v State of Maharashtra and Ors (1996) 2 SCC 634, the Hon'ble Supreme Court, held that:
"in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession."
20. In Hucks v. Cole (1968) 118 New LJ 469, Lord Denning stated that:
"a medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field."
Relying upon the landmark judgments (supra), in the instant case, there was not an act of omission committed by OP. He has performed ARMS-PCR analysis as per standard protocol.
21. Similarly, in the case of Martin F. D' souza vs. Mohd. Ishfaq, 2009 CTJ 352 (SC), the Hon'ble Supreme Court has held that, a doctor cannot straightway be held liable for medical negligence simply because a patient has not favourably responded to treatment or surgery has failed. The court has observed as, When a patient dies of suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions."
22. A Bench consisting of Hon'ble Justices Markandey Katju and R.M. Lodha as his Lordship then was held that "A medical practitioner is not liable to be held negligent simply because things went wrong from a mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below the standards of a reasonably competent practitioner in his field". Hon'ble Justice Katju commented that;
"While doctors who cause death or agony due to medical negligence should certainly be penalised, it must also be remembered that like all professionals doctors too can make errors of judgment, but if they are punished for this no doctor can practice his vocation with equanimity. Indiscriminate proceedings and decisions against doctors are counter-productive and serve society no good. They inhibit the free exercise of judgment by a professional in a particular situation."
The judgments noted above are squarely applicable in the instant case. It is settled legal preposition that, the onus of proving the alleged medical negligence in the treatment or diagnosis lies with the person alleging medical negligence. Therefore, in this case the onus was upon the Complainants/Appellants to prove that the OP was negligent while testing or while recording the results. Admittedly, no doctor was examined by the complainants to comment on the OP's reports as to whether there was any negligence in the procedure ARMS-PCR DNA analysis adopted by the OP. As noted above, in several medical literatures it is observed that even low level of Maternal Cell Contamination (MCC) may interfere with correct molecular diagnosis. Thus, in my view, the complainants have failed to prove any on the part of the OP.
23. For the reasons stated above, I concur with the State Commission that the complaint was barred by limitation and that there was no negligence or deficiency on the part of the OP while conducting aforesaid tests. Thus, there is no reason to interfere with the view taken by the State Commission. The appeal is accordingly dismissed.
...................... DR. S.M. KANTIKAR PRESIDING MEMBER