Yash vs Dr. Ajit Singh & Anr

Sudip Ahluwalia, Member

This Revision Petition has been filed by Petitioner/Complainant under Section 21(b) against the impugned Order dated 24.05.2017 passed by the State Consumer Disputes Redressal Commission, Haryana, Panchkula in F.A. No. 227 of 2016, vide which the Appeal filed by the Complainant was partly allowed and the Order of the District Forum was modified.

The factual background, in brief is that on 08.03.2013, Parmod Kumar, the Complainant, experiencing health discomfort, sought medical consultation from Dr. Ajit Singh (Respondent No. 1). Subsequent to an examination, the Respondent No. 1 directed the Complainant to Dr. Jagbir at Adrash Diagnostic Center for an HIV test. Upon conducting the HIV Test, the Respondent No. 2 declared the Complainant to be free of HIV, and in good health in that regard. However, despite this diagnosis, the Respondent No. 1, upon reviewing the reports from Respondent No. 2 in conjunction with his own presumptive diagnosis, treated the Complainant for tuberculosis (T.B.) using allopathic remedies. Nevertheless, the Complainant, finding no respite from the prescribed treatment, sought medical assistance at PGIMS Rohtak on 22.08.2013. At the A.R.T. Center, PGIMS Rohtak, the Complainant was diagnosed with HIV and Tuberculosis. Additionally, on the same date, the Complainant underwent another testing procedure under the supervision of the Respondent No. 2, yielding results consistent with the previous report issued on 10.03.2013. Seeking corroborative evidence, the Complainant approached Dr. Lal Path Labs at Hanuman Road, New Delhi, which confirmed the findings of PGIMS, Rohtak.  In these circumstances, the complainant claims to have undergone tremendous mental and physical distress due to the collective actions of the Respondent Nos. 1 and 2 from 08.03.2013 to 21.08.2013. It is also the case of the Complainant that had the initial diagnostic procedures conducted on 08.03.2013 been executed with greater care, the adverse deterioration of the Complainant's condition might have been averted, preventing the ensuing demise attributed to negligence and service deficiencies by the Respondents. The original Complainant i.e. Parmod Kumar died due to delayed treatment of HIV and Tuberculosis. However, his minor son Yash was made party to the complaint before District Forum Jhajjar, represented through his real uncle Ompal.

The District Forum vide its Order dated 14.12.2015 partly allowed the Complaint. The relevant extracts of the Order of the District Forum are set out as below –

“4. From the perusal of record and contents of complaint as well as written statement of respondent No. 2, it stands clear that Parmod Kumar got himself tested from the lab of respondent No. 2 after referred by respondent No. 1 firstly on 10.3.2013 vide test report Ex. P-8 and the respondent No. 2 issued report "HIV I II- Non Reactive" Thereafter, said Parmod complainant had got tested at respondent No.2's lab on 22.8.2013 vide document Ex. P-6 and this time also, the report was "HIV I II- Non-reactive by TRI DOT (ELISA-METHOD)" meaning thereby that Parmod Kumar was having no HIV I II. But as per learned counsel for complainant, for confirmation Parmod Kumar also got tested himself from PGIMS, Rohtak and' produced on file the record of PGIMS whereby it stands clear that Parmod Kumar was suffering from HIV + TB. Thereafter he also got tested himself from Dr. Lal Path Lab vide documents Ex. P-3 and Ex. P-4 on 5.9.2013. We have perused the documents Ex. P-3 & Ex. P-4 and found that as per Dr. Lal Pathlabs, the result was "HIV I was found Reactive and HIV 2 Non Reactive". Therefore, from the above mentioned all documents, it stands established that the complainant has been harassed due to wrong reports issued by the respondent No. 2 because as per respondent No. 2's report, the complainant was not having any HIV disease whereas actually he was having the said disease. According to the counsel of complainant, said Parmod Kumar has now expired due to this illegal and deficient act of the respondent No. 1 & 2, therefore, Yash, the son of complainant has sought compensation on this account.

In view of above facts, submissions and perusal of documents, we are of the considered view that however, the reports issued by the respondent No. 2 were not the final reports but we are of the further considered view that the Complainant has suffered a lot of mental agony, harassmentand losses at the hands of respondents due to issuance of wrong reports by the respondent No. 2. As such, we find negligence and deficiency in service on the part of the respondent Nos. 2 who issued wrong reports and on the partof the respondent No. 1 also who given wrong treatment to Parmod Kumar on the basis of wrong reports and hence, we are of the opinion that the complainant should be compensated by the respondent Nos. 1 & 2 jointly.

In view of aforesaid discussion and findings, we direct the respondent Nos. 1 & 2 to pay a sum of Rs. 25,000/- as compensation on account of mental agony, harassment and losses to Yash, the son of complainant on account of wrong treatment given to his father Parmod Kumar. The complainant Yash is also entitled for a sum of Rs. 5500/- on account of litigation expenses for the present unwanted and unwarranted litigation only due to the deficiency in service on the part of the respondents. The complaint stands disposed of accordingly.

The copy of above order be supplied to the parties free of costs and be sent to the respondent No.1 through post being exparte.”

Aggrieved by the Order of the District Forum, the Complainant filed Appeal before the State Commission. The State Commission partly allowed the Appeal vide the impugned Order dated 24.05.2017. The relevant extracts of the impugned Order are set out as below –

“6. As per facts mentioned above, it is clear that complainant was having HIV positive, but, O.P.No.2 did not declare the same. If more tests were required then O.P.No.2 should have advised him accordingly. In Ex.P-8 O.P.No.2 clearly declared that he was not having HIV. It is no where mentioned therein that which type of test was conducted by him. When HIV was suspected O.P.No.2 should have conducted or suggested further test to determine the same. It is clear laxity on his part. However O.P.No.1 cannot be blamed because he gave treatment on the basis of ultrasound report Ex.P-5 and report of O.P.No.2. Had he been declared patient of HIV and O.P.No.1 had given treatment for tuberculosis then it could have been a case of negligence on his part. So he cannot be held liable to pay any compensation.

Due to wrong diagnosis by O.P.No.2, complainant went from one place to other and must have spent huge amount. Even if details of expenditure are not mentioned it could be safely presumed that one has to spend substantive amount for tests and going from one place to another. He also suffered mental trauma during this period. This is a fit case where amount of compensation should be increased. As a sequel to above discussion it is opined that respondent NO.1/O.P.NO.1 is not liable to pay any compensation. O.P.No.2-respondent NO.2 is held liable to pay compensation to the tune of Rs.75000/- for mental harassment etc and Rs.11000/- as litigation expenses alongwith interest @ 09% from the date of filing of complaint till realization. Impugned order dated 14.12.2015 is modified accordingly and appeal is disposed of.”

Aggrieved by the Order of the State Commission, the Complainant filed the present Revision Petition raising the following key issues –

a. That the State Commission disregarded the Respondent No. 1's shared responsibility with the Respondent No. 2, as the Respondent No. 1 had specifically directed the Complainant to solely consult Respondent No. 2 for diagnosis, indicating a close association between them. This connection suggests that the Respondent. No. 1 might gain commission by referring patients to Respondent No. 2. Therefore, the Respondent No. 1 cannot evade responsibility for negligence or deficient service by referring patients to Respondent No. 2 solely for personal gain. Instead, the Respondent No. 1 should have advised the Complainant to undergo testing at an accredited laboratory known for accurate reports;

b. That the lower Fora overlooked a crucial detail that the minor Complainant, Yash, has lost his mother earlier as well and currently lacks proper guardianship. He relies entirely on his uncle, Ompal, for care and support. The State Commission should have considered awarding a minimum of Rs. 10 Lacs to ensure the minor's independent life without relying on others;

c. That no evidence exists to support the claim that the Respondent Nos. 1 and 2 were not negligent or deficient in service. Despite this lack of evidence, the State Commission exempted the Respondent No. 1 from compensating the Complainant, although the said Respondent should have faced substantial penalties for the erroneous diagnosis leading to death, including a prohibition from practicing medicine within the country.

The Ld. Counsel for Petitioner has argued that the State Commission completely ignored that the Respondent No. 1 is equally at fault with Respondent No. 2 because Respondent No. 1 had instructed the deceased to get the diagnosis done only from Respondent No. 2 as they both have good nexus with each other, on the basis of earning commissions for referrals done. Thus, it is a clear case where the Respondent No. 1 cannot go scot free from his negligence/deficiency in service to refer his patient to a particular diagnostic lab merely for earning some amount of commission. The Respondent No. 1 ought to have asked the Complainant to get the tests conducted at any authorised lab having accuracy in its reports; That the State Commission also stated that due to wrong diagnosis by Respondent No. 2, the Complainant went from one place to another and must have spent huge amount in the travels. Even if details of expenditures are not mentioned, it could be safely presumed that has one has to spend substantively for diagnostics and travel, during which he suffered mental trauma as well. Thus, the amount of compensation was rightly enhanced by the State Commission; Therefore, the Order passed by the State Commission deserves to be modified in the facts and circumstances of the present case and compensation may be enhanced to the tune of Rs. 10 Lakh, as was originally claimed by the Complainant before the District Forum, along with 18% interest till the date of realization of the said amount.

This Commission has heard both the Ld. Counsel of the Petitioner and Respondent No. 2, and perused the material available on record.

The grievance of the Petitioner in this case is two-fold.  He is firstly aggrieved that the claim was wrongly dismissed qua the Respondent/Opposite Party No. 1 namely Dr. Ajit Singh (GAMS) on the premise that he had given treatment on the basis of the Ultrasound Expert’s report, and had such report been correct, and the said Respondent had still given treatment for Tuberculosis, then it could have been a case of negligence on his part.

To counter the above reasoning of the Ld. State Commission, it has been mentioned in Para 9 of the Written Synopsis filed by the Petitioner that –

“9.  That the Ld. State Commission completely ignored that O.P. No. 1/ Present respondent no. 1 is equally at fault with O.P. No. 2/ present respondent no. 2 because O.P. No. 1/ present respondent no. 1 has himself suggested/instructed the complainant to get the diagnosis done only from O.P. no. 2/ present respondent no. 2, they both have good nexus with each other as O.P. No. 1/ present respondent no. 1 earn commission from O.P. No. 2/ present respondent no. 2 for referring his patients for getting diagnosis from O.P. No. 2/ present respondent no. 2.  Thus, it is a clear case where O.P. No. 1/ present respondent no. 1 cannot be escort free from his negligence/deficiency in service who refer his patient to O.P. No. 2/ present respondent no. 2 merely for earning some amount of commission from him.  Instead of that he would have asked the complainant to get his test conducted from any authorised lab having accuracy in its reports.

To further support the aforesaid contention, Ld. Counsel for the Petitioner drew attention of this Commission to the cause-title of the matter before each Forum starting from the Ld. District Forum right up to this Commission, to emphasize that the Respondent No. 1/ Dr. Ajit Singh shares the same address of Adrash Diagnostic Centre, Silani Gate, District Jhajjar, Haryana, whereas the Respondent No. 2 namely Dr. Jagbir (BMLT) happens to be the Chairman of Adrash Group of Institution, Adrash Diagnostic Centre located at the same place.  The mere commonness of work place addresses of the two Opposite Parties, however, can by no means be taken to mean that the First Respondent-Dr. Ajit Singh had actually any knowledge that the Ultrasound report to be given by the Respondent/Opposite Party No. 2 would necessarily have to be wrong or inaccurate.  To that extent, there appears to be no impropriety in the reasoning adopted by the Ld. State commission.

The second grievance of the Petitioner is that the quantum of compensation awarded by the Ld. State Commission is also very inadequate.  Here it may be mentioned that in the impugned Order, the Ld. State Commission had mentioned in Para 7 thereof that no details of expenditure were mentioned in the complaint.  Nevertheless the Ld. State Commission enhanced the compensation of Rs. 25,000/- and the litigation costs of Rs. 5,500/- as awarded by the Ld. District Forum to Rs. 75,000/- and Rs. 11,000/- respectively.  Even before this Commission, there is no material on record to indicate any details of expenditure incurred by the Complainant for his subsequent treatment, on account of which this Commission also finds no impropriety in the final compensation as determined by the Ld. State Commission.

For the aforesaid reasons, no grounds are made out to interfere with the impugned Order.  The Revision Petition is therefore dismissed.  No orders as to costs.

Pending application(s), if any, also stand disposed off as having been rendered infructuous.