BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 31st day of May 2017
Filed on : 18-02-2014
PRESENT:
Shri. Cherian K. Kuriakose, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC.No.102/2014
Between
M.U. John, : Complainant
Thaikattu house, (By Adv. John Joseph,
Kizhakombu P.O., Law Bureau India, ERICA Arcade,
Koothattukulam-682 662. Nr. Matha Tourist Home, St. Vincent
Road, Ernakulam North,
Kochi-682 018)
And
1. Dr. Jayan, : Opposite parties
Gastroenterologist, (By Adv. R.S. Kalkura, “Srivatsa”
Malankara Orthodox Syrian 61/335, Judges Avenue, Kaloor,
Church, Medical College Kochi-17)
Hospital, Kolencherry,
Ernakulam-682 311.
2. The Secretary,
Malankara Orthodox Syrian
Church, Medical College
Hospital, Kolencherry,
Ernakulam-682 311.
O R D E R
Cherian K. Kuriakose, President.
1. Complainant’s case
2. The complainant approached Malankara Orthodox Medical Mission Hospital, Kolenchery on 10-09-2013 in order to carry out an endoscopy test as ordered by Dr. George Zacharia of Sentrum Hospital, Koothattukulam. Accordingly, the complainant underwent a rapid HBSAG test prior to the endoscopy on payment of Rs. 1,067/- as per bill dated 10-09-2013. After undergoing the test the result found was positive. The result was that the complainant was diagnosed HCV positive and HIV negative. The 1st opposite party Dr. Jayan attached to the 2nd opposite party hospital insisted that the confirmatory test regarding the result of HCV is required prior to the endoscopy. The result of anti HCV test received after 4 days was found positive. The complainant was asked by the 1st opposite party to treat the matter seriously and informed him that the said problem is contagious and that the persons who were in close contact with the complainant are also to be examined clinically to find out as to whether they have also infected. The complainant however, conducted another test at DDRC, Kaloor, Ernakulam and found that as on 23-08-2013 the test was found negative. According to the complainant the test done at the opposite party hospital in its laboratory had resulted in a wrong conclusion making the complainant moody and sorrowful. The opposite party hospital has done unfair trade practice by making wrong conclusion in the lab test and the complainant is entitled to compensation to the tune of Rs. 5 lakhs. Hence the complaint.
2. Notices were given to the opposite parties and the opposite parties appeared and contested the matter by filing their version and adducing evidence.
3. The opposite parties in their version contended that the complainant is not a consumer and that there was no instance of any deficiency in service or negligence on the part of the opposite parties as alleged, and sought dismissal of the complaint.
4. The evidence in this case consisted of the oral evidence of the complainant as PW1 and PW2 and Exbts. A1 to A11 documents on the side of the complainant. The opposite party examined DWs 1 and 2 and Exbts. B1 to B12 documents were marked.
5. The following issues were settled for consideration
Whether the complainant proved that there was any deficiency in service on the part of the opposite party or unfair trade practice as alleged?
ii. Reliefs and costs.
6. Issue No. i. The complainant paid Rs. 1,067/- towards the laboratory examination on 10-09-2013 as per Exbt. A1 and the examination result marked as Exbt. A2. HCV rapid test was found to be positive and HIV rapid test was found to be negative. Payment for Endoscopy is seen to have been made on 10-09-2013 as seen from Exbt. A3 bill. Confirmatory test for anti HCV done on 10-09-2013 was also found positive as per Exbt. A4. The complainant is seen to have consulted with the 1st opposite party on 08-10-2013 as seen from Exbt. A5. On 08-10-2013 the 1st opposite party is seen to have asked the complainant to get the HCV test as per the prescription on paying Rs. 450/- the complainant is seen to have done the test on 15-10-2013 elsewhere. Repeated test on 15-10-2013 at DDRC, Ernakulam marked as Exbt. A8 shows that the anti HCV test was negative. A confirmatory test done on 23-10-2013 was also found negative as per Exbt. A11 for which payments were made as per Exbt. A9 and A10.
7. PW1 was examined on 27-11-2014. The complainant was working as a managing director of a co-operative bank and during cross-examination he admitted that only two tests were conducted at the opposite party hospital. PW2 is a close friend of PW1 who gave evidence that the complainant was found to be moody and sad after seeing the test result issued from the 1st opposite party hospital.
8. The 1st opposite party was examined as DW1 and adduced evidence that before going endoscopy the patient will have to undergo HIV/HBSAG/HCV test and he produced Exbt.B1 literature to substantiate the contention. DW1 was not cross-examined by the complainant. DW2 Dr. Abhi Somu a consultant Gastro Entomologist from PVS hospital, Ernakulam also supported the contention of DW1. He further submitted that screen test are done prior to endoscopy and there are chances of false positive and negative reports. Therefore it was only usual to direct to get a confirmatory test result as well. Exbt. B5 is a guidelines for lab tests and result reporting of antibody to hepatitis C - virus . In Exbt. B5 it is seen stated that in certain clinical settings , false positive anti HCV results do occur . There is a time lag between the tests done by the complainant at the opposite party hospital and the test done by DDRC at Ernakulam. During the interim period, it is brought out in evidence that the complainant was on medication. Therefore, just because of the fact that there was different findings at different labs on different dates were found, it cannot be said that there was any deficiency in service as alleged. The complainant did not produce any authentic expert’s evidence to substantiate his case alleged in the complaint. We find the issue, therefore, against the complainant.
9. Issue No. ii. Having found issue No. i against the complainant, we find that the complaint is liable to be dismissed and is accordingly dismissed.
Pronounced in the open Forum on this the 31st day of May 2017
Sd/-
Cherian K. Kuriakose, President.
Sd/-
Sheen Jose, Member.
Sd/-
Beena Kumari V.K., Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant's Exhibits
Exbt. A1 : Cash bill dt. 10-09-2013
A2 : Micro biology report
A3 : Cash bill dt. 10-09-2013
A4 : Report with bill No. 10-09-2013
A5 : Cash bill dt. 04-10-2013
A6 : Laboratory Requisition form
A7 : Cash bill dt. 15-10-2013
A8 : HCV test report
A9 : Report dt. 23-10-2013
A10 : Report dt. 28-10-2013
A11 : Biochemistry report dt. 23-10-2013
Opposite party's Exhibits
Exbt. B1 : Pages Nos.18 and 19 of
Gastroenterological Society
of Australia
B2 & B3 : Micro biology report
B4 : Micro biology report dt.14-09-2013
B5 : Guidelines for laboratory testing
and result …
B6 : examination report
B7 : Copy of manual of
clinical microbiology
B8 : Patent data sheet
B9 : Box 80-3 Contraindications to
Therapy with pegylated Interferon and
Ribavirin
B10 : Screening tests
B11 : Box 80-3 Contraindications to therapy
with pegylated Interferon and Ribavirin
B12 : Out patient Record
Depositions
PW1 : John M.U
PW2 : M.P. Paulose
DW1 : Dr. Jayan
DW2 : Dr. Aby Somu
Copy of order despatched on :
By Post: By Hand:
