KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No. 116/2017
JUDGMENT DATED: 01.12.2022
(Against the Order in C.C. 20/2014 of CDRF, Ernakulam)
PRESENT:
HON’BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT
SRI. RADHAKRISHNAN K.R. : MEMBER
APPELLANT:
Administrator, Gulshan Medicare, Amulya Street, Kochi 18 represented by its present Administrator Prateep Kumar.
(By Adv. Preetha John . K)
RESPONDENTS:
- Manoj Chacko, Vanchiyil House, Mundakkayam P.O, Chelikuzhy Kottayam- 686513.
(By Adv. Asok Kumar. J.S )
- The Manager, Multilink Management Consultants, No. 27, Pioneer complex, Marine drive , Kochi- 31.
- Manager, Gamca Cochin, 2nd floor, Metro towers, Convent road, Kochi. 35.
(By Adv. Vigy. K.N.)
JUDGMENT
SRI. RADHAKRISHNAN K.R : MEMBER
This is an appeal filed under Section 15 of the Consumer Protection Act 1986 against the order dated 30/11/2016 in C.C. No. 20/2014 on the file of the Consumer Disputes Redressal Commission, Ernakulam (District Commission for short). As per the order, the appellant/ first opposite party is directed to pay a compensation of Rs. One lakh within one month from the date of receipt of a copy of the order failing which the complainant is entitled for 18% interest from the due date till realisation of the amount.
2. Brief details of the complaint are as follows.
The complaint pertains to a medical certificate, prescribed for employment in Gulf Cooperation Council countries, which stated the complainant as ‘unfit’ after having conducted the medical check up by the first opposite party. The complainant was employed in Saudi Arabia. He came on leave for 15 days on 21-08-2013. As there was some delay in his return, he was given a new visa by the second opposite party and he was required to comply with the medical check up requirements. The appellant is an approved medical centre as per the norms of Gulf co-operation Council States (GCC) authorised to conduct mandatory medical check up to those who are seeking employment in GCC countries. The complainant approached them for medical check up on 21-11-2013 and his X-ray showed a right upper zone fibrosis which is a bar for entry into Gulf countries . The certificate was issued as per the norms of the GCC, after verifying the report of the chest X-ray by a qualified radiologist stationed at Bombay. An amount of Rs. 4,200/- was paid to the first opposite party towards fee for medical check up. After knowing about the ‘unfit’ medical report issued by the appellant the complainant approached Dr. P. Sukumaran, a pulmonologist, Bharat Hospital, Kottayam, for a second opinion. He certified that complainant does not have any evidence of any active respiratory disease clinically and radiologically. Request for review of the report on the basis of this certificate was refused by the opposite party. Complainant’s employer made a request in this regard which was also not accepted. The complainant alleges that unfit medical certificate produced by the first opposite party is false and it was issued with ulterior motive to give visa to somebody else. Thus they purposefully denied employment opportunity to the complainant. The complainant alleged deficiency in service and unfair trade practice against the opposite parties and claimed a compensation of Rs. Ten lakhs towards financial loss and mental agony as he lost his employment opportunity abroad only because of the false medical certificate.
3. Opposite party filed version denying the allegations of the complainant. They issued the medical report as per the prescribed guidelines and so there is no deficiency in service on their part. Hence they prayed for dismissal of the complaint.
4. The evidence in this case consisted of the documentary evidences marked as Exbts. A1 to A5 on the part of the complainant and Exbts. B1 to B6 on the part of the opposite parties. No oral evidence was adduced by the complainant. First opposite party adduced oral evidence through their administrator DW1.
5. On the basis of the evidence adduced, the District Commission passed the impugned order. Aggrieved by the said order the first opposite party has filed this appeal.
6. Heard and perused the records.
7. The learned counsel for the appellant submitted that the medical certificate was issued as per the procedures prescribed by the GCC. There was no lapse on their part in issuing the medical certificate (Exbt B2). Appellant contends that it was issued after careful examination of the X-ray by a qualified doctor. The complainant has not suffered any loss. Medical check up can be conducted after an interval of six months. Hence he can undergo the prescribed medical check up after six months and try for a job again. The certificate of Dr P. Sukumaran, pulmonologist, produced by the complainant is having no relevance. He is an outsider and was not examined. Hence the learned counsel prayed for setting aside the order of the District Commission.
8. We have considered the submissions and carefully gone through the records.
9. It is admitted that the first respondent/complainant paid Rs 4200/- towards cost of medical check up vide receipt dated 21.11.2013 (Exbt A1). It is also admitted that the opposite party/appellant issued the medical certificate (Exbt B2). The allegation of the first respondent / Complainant is that Ext B2 certificate, which was about his health conditions, was issued wrongly with ‘unfit’ remarks. This resulted in denying his entry to Saudi Arabia and thus losing his opportunity for a job there.
10. Important issue in this case is the authenticity of Exbt B2 certificate. It is a crucial certificate as far as a job seeker, trying for an opportunity in gulf countries, is concerned. According to the first respondent/ complainant, there is carelessness / lapse on the part of the appellant in issuing the said certificate. It was not signed by the Doctor. The doctor who issued the certificate was not examined. Opposite party refused to review the report even after producing the medical report (Exbt A5) of Dr P. Sukumaran, pulmonologist, which stated that complainant does not have any evidence of any active respiratory disease clinically and radiologically. Request for review from the employer of the complainant was also not considered. Complainant lost an employment opportunity which offered a salary of 700 SAR equivalent to Rs one lakh per month.
11. Evidently it was the ‘unfit’ medical certificate (Exbt B2) which made the complainant ineligible for a job in Saudi Arabia. Ext B1 produced by the appellant, is the “rules and Regulations for medical examination of expatriates recruited for work in the GCC States.” Some relevant portions of the clauses from Ext B1 are reproduced as under:
Article 15(7): “the medical team in all divisions of the center should be highly qualified up to the efficient standards and training to carry out the medical examinations, in all required specialities. The number of personnel in the medical team should match the magnitude of work required”.
Obviously ‘medical team’ includes a qualified doctor also. Presence of a Radiologist or at least his presence on call is necessary. It is surprising that a diagnostic centre which is conducting such important checkups do not have qualified doctors at the centre where the tests are conducted. In this case the check up was done at Ernakulam centre and the doctor who examined the X ray and issued the certificate is stationed at Mumbai. Details of doctors, if any, available in the centre is also not produced by the appellant /first opposite party.
12. The following articles are also relevant as far as duties and responsibilities of the approved centers are concerned:
Article 16 (6): “Guarantee that medical fitness certificate given to the expatriates should be authenticated and validated”
Article 16 (11): “ All issued certificates will be stamped with the seal of the center after a medical examination has been carried out , ....”
13. General requirements (Exbt B1 - page 40) state that “18. The man power in the facility should include: (B) General physicians, including at least one female physician, ....” (F) Radiology specialist (Physician, Master or equivalent in diagnostic Radiology ...”
VII – Medical reports (Page 45):. “ 4. A computer program for saving the data of the candidates who have been examined in the center and were issued medical reports with a copy of the reports have been issued and signed by the medical specialists and approved by the medical Director and sealed by the stamp accredited by the embassies and consulates ..”
Evidently the Exbt B1 certificate does not contain signature and seal of the Doctor. The remarks on the certificate is “X RAY UNFIT’. Job of the complainant/ first respondent is written as ‘plumber’ whereas he was a male nurse. Thus the certificate was not issued as per the guidelines prescribed.
14. As far as Clinical Establishments (Registration and Regulation) Act, 2010 is concerned, it prescribe the minimum standards of facilities and services to be provided by Medical Imaging Services (Diagnostic Centre). Relevant provisions are reproduced as follows:
Section 4.3 states that “The establishment shall have services of a qualified radiologist or related medical practitioner, registered with State/Central Medical Council of India, competent for interpretation and reporting.”
Section 4.4 “Every department with radiation based services shall have a Radiological Safety Officer (RSO) of appropriate level having qualifications as prescribed and approved by the competent authority”.
Annexure 2 provides qualifications of Radiologist : M.B.B.S with post graduate Degree in Radiology/Radiodiagnosis (M.D.R.D) or Diploma in Radiology /Radiodiagnosis (D.M.R.D) or DNB in Radiology/Radiodiagnosis (The Degree/Diploma being recognized by and registered with Medical Council of India /State Medical Council).
On the basis of the evidence on record it is clear that appellant has not complied with the above provisions also.
15. The first respondent/complainant lost the job consequent on issuing of an unfit medical certificate by the appellant/first opposite party. The contention of the appellant that the certificate was issued after careful examination by a qualified doctor is unacceptable. The medical check up was conducted at Ernakulam and X-ray was examined by a doctor stationed at Mumbai. It is not proved that a qualified doctor/radiologist was available at the centre where the test was conducted. The appellant should have been more careful while issuing a negative result. They should have doubly ensured that it was correct in all respects. In the proof affidavit filed by the appellant/ first opposite party it is stated that “5. ....Unfortunately the X ray result of complainant showed a right upper zone fibrosis which is a bar to enter into gulf country as per GCC norms, this opposite party issued unfit certificate to him” . In the appeal memorandum the appellant has stated that “h. The fibrosis is not an active disease and is only a scaring of lungs of an old infection for which no treatment is required is also not been considered by the forum below”. This is a contradictory statement. If it is not a serious disease which is not to be reported, the medical certificate should have been issued accordingly, which would have saved the job of the complainant.
16. We do not find any merit in the appeal requiring our intervention. We concur with the finding of the District Commission that there was deficiency in service and unfair trade practice on the part of the appellant/first opposite party.
In the result the appeal is dismissed. No costs.
The sum of Rs. 25,000/- deposited by the appellant on filing this appeal towards statutory deposit shall be released to the first respondent/complainant on proper application. The balance amount due as directed above shall be paid by the appellant/first opposite party within one month from the date of receipt of a copy of this order, failing which the first opposite party/complainant shall be at liberty to proceed for execution of the order.
JUSTICE K. SURENDRA MOHAN : PRESIDENT
RADHAKRISHNAN K.R. : MEMBER
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