Suresh Kumar Through Lrs vs Pt. B.D. Sharma Post Graduate Institute Of Medical Sciences Through Its Director, Rohtak

Heard Ms. Archana P. Dave, Advocate for the appellant. None appeared on behalf of the respondent.

Above appeal has been filed against the order of Haryana State Consumer Disputes Redressal Commission, Panchkula, dated 10.12.2012 in First Appeal No.16 of 2009, whereby the State Commission dismissed the appeal.

Suresh Kumar filed Consumer Complaint No.16 of 2009 with the State Commission for directing the opposite party to (a) pay Rs.22 lakhs with interest @ 18% p.a. for causing sufferings and pain, humiliation, mental agony and social sufferings due to deficient and negligent services rendered by the opposite party from 11.04.2018 till realization; (b) pay the cost of litigation; and (c) any other relief deemed fit and proper by the Commission may kindly be granted.

The complainant was working as a driver and getting salary of Rs.4000/- per month. He felt pain in his stomach. He visited Post Graduate Institute of Medical Sciences, Rohtak where he was advised for operation due to rupture of liver and admitted on 11.04.2008. Pre-operation blood tests and investigations were also done on 12.04.2008. In the blood test report, the complainant was found HIV negative. Thereafter, surgery was conducted and the complainant was also given six units of blood. The complainant was discharged on 07.05.2008. As the complainant was still having some problems, he was re-admitted in the same hospital on 11.05.2008 and was discharged on 21.05.2008. In spite of taking proper medication and balanced die, the complainant was not well. Therefore, he visited Ram Manohar Lohia Hospial, New Delhi where certain tests were conducted. On 18.11.2008, Medical Officer of Ram Manohar Lohia Hospital informed the complainant that he was found HIV positive. According to the complainant he was administered HIV infected blood at PGIMS, Rohtak. Therefore, the complainant filed Consumer Complaint No.16 of 2009 with the State Commission.

The opposite party (respondent) filed the written version denying the allegations made in the complaint. It was admitted that the complainant was admitted in the hospital on 11.04.2008 and discharged on 07.05.2008. The fact that the complainant was administered six units of blood was also admitted by the opposite party. It was stated that the complainant got examined for HIV at Ram Manohar Lohia Hospial on 18.11.2007 and not on 18.11.2008, which is clear from the registration card of the complainant. The doctor at Ram Manohar Lohia Hospital mentioned in the medical history of the complainant that he was HIV positive and counselled for testing from Integrated Council and Testing Centre and Health Life Style. It was alleged that the complainant was already HIV positive and was referred to ICTC, which was exclusively meant for HIV patients. Before visiting to the opposite party, the complainant was already HIV positive and he intentionally concealed his HIV positive report. In the blood test conducted by the opposite party, HIV was found non-reactive. Before administering the blood to the complainant, the opposite party got it tested and placed on record the test report. There was no deficiency in service on the part of the opposite party and the complaint is liable to be dismissed.

The State Commission, vide impugned order dated 10.12.2012 dismissed the complaint with the observation that the complainant failed to file any supporting evidence to substantiate the allegations made in the complaint.

We have considered the arguments of the counsel for the appellant and examined the record. None appeared on behalf of the respondent. The only dispute in this case is whether the complainant was administered HIV infected blood by the opposite party (hospital) or he was already HIV positive before admission in the hospital. Blood was transfused on 12.04.2008. The complainant came to know that he is HIV positive after he was examined at Ram Manohar Lohia Hospital on 18.11.2008 i.e. after expiry of more than seven months from the date of transfusion of blood. The opposite party has filed copy of the mandatory test report (Annexure R-3 to R-10) of the blood transfused to the complainant, which shows that HIV HBsAG, HCV, VDRL and MP tests were conducted. The complainant has not challenged the above blood test reports nor has filed any evidence to prove that he became HIV positive after transfusion of blood when he was admitted in the opposite party/hospital. In absence of any concrete evidence, it is not justified to raise any presumption that infected blood was transfused. The source of infection is unprotected sex also. Therefore, by raising presumption, the hospital cannot be held guilty. The appellant has failed to prove his case before the State Commission as well as this Commission by filing any concrete evidence to the effect that he got HIV infection due to blood transfusion by the opposite party. On the contrary, the opposite party has filed the blood test reports of all six units transfused to the complainant.

We may note that the State Commission has wrongly observed that registration of the complainant at Ram Manohar Lohia Hospital was dated 18.11.2007 and not 18.11.2008 and the complainant was already HIV positive on 18.11.2007. In this respect, the complainant has filed copy of the letter dated 19.12.2012 issued by Ram Manohar Lohia Hospital wherein it is clarified that registration of the complainant is dated 18.11.2008 and not 18.11.2007. In the said letter is it also clarified that 18.11.2007 was a Sunday and no OPD services are provided on Sunday. Thus, dismissal of the complaint on this ground was not justified. However, since the complaint failed to file any evidence to substantiate that HIV positive blood was transfused by the opposite party; and the opposite party filed the testing reports of all six units, we uphold the finding of the State Commission that there was no medical negligence or deficiency in service on the part of the opposite party.

ORDER

In view of aforesaid discussions, the appeal is dismissed.