Sri Ranjan Ray, Ld. Member

FINAL ORDER/ JUDGEMENT

This complaint U/S 11 and 12 of C.P. Act, 1986 was initially filed against the Opposite Party (O.P.) – M/S Mak Diagnostic, a unit of total Eye Sight, Burdwan Road, Beside Kishore Sangha Club, P.O. & P.S.: Siliguri, Dist.: Darjeeling, Pin Code- who contested the case by filing Written Version (W.V.).

          The case of the complainant as per his complaint is as follows-

          The complainant examined her blood for Hepatitis B surface antigen on 18.11.2017 from the O.P. in which the O.P. delivered the report as showing positive, the abbreviation of HBsAg is Hepatitis B surface antigen and this said test looks for Hepatitis B antigen in the blood. This test is used to find out whether a patient has a recent or long- standing infection from the Hepatitis B virus (HBV). A patient may also do this test if he has a risk for being in contact with this virus. A patient may also have this test several times if he has already been diagnosed with Hepatitis B, to monitor his infection level.

          After getting the said blood examination report from the O.P. the complainant was very much shocked and after couple of days decided to visit some reputed medical institutions for treatment. To verify and to cross check the said report the complainant obtained another three reports from three different laboratories, i.e., on 26.10.2017 from 3 Gen Diagnostics, on 27.10.2017 from Kins Care Diagnostic and on 28.10.2017 from Dr. Mallick’s Pathology Lab and the all three laboratory’s report dated 26.10.2017, 27.10.2017 and 28.10.2017 came with a result of non- reactive.

          The complainant knocked the door of the O.P. for quarry of their report but the O.P. behaved roughly did not pay any importance to complainant’s quarry. Being a lady the complainant was much harassed and expensed Rs. 5,000/- (Rupees Five Thousand) only to verify and clear the doubt of the O.P.’s act. She wasted time and physically spent several times for such act of the O.P.

          The prayers of complainant are as follows :

1. To pass an order directing the O.P. to pay Rs. 8,000/- (Rupees Eight Thousand) only to the complainant for all test fees and conveyance cost.
2. To pass an order directing the O.P. to pay Rs. 50, 000/- (Rupees Fifty Thousand) only to the complainant for mental agony, financial loss and harassment.
3. Any other relief/ reliefs as the Hon’ble. Commission deem fit and proper.

The total prayer amount is Rs. 58,000/- (Fifty Eight Thousand) only.

                    List of Documents filed by the complainant:

1. Photocopy of the Blood Test Report. (Annexure I)
2. Photocopy of the Blood Test Report, dated 26.10.2017. (Annexure II)
3. Photocopy of the Blood Test Report, dated 27.10.2017. (Annexure III)
4. Photocopy of the Blood Test Report, dated 28.10.2017. (Annexure IV)

          Regarding this instant case, the Opposite Party- M/S Mak Diagnostic, a unit of total Eye Sight, Burdwan Road, Beside Kishore Sangha Club, P.O. & P.S.: Siliguri, Dist.: Darjeeling, Pin Code- who contested the case by filing Written Version (W.V.) by the way of an affidavit and as per his W.V. the case is as follows.   

In his Written Version the O.P. denied most of the allegations made by the complainant. The O.P. argued that the present case is bad for mis- joinder and non- joinder of necessary party 3 Gen Diagnostics, Kins Care Diagnostic and Dr. Mallick’s Pathology Lab are necessary party. As per the O.P., the testing of HBsAG is done through Hepa Card and it is a very similar process as test conducted for diabetic (Sugar) test where the sample of blood collected by the Diagnostic Centre are dropped/ inserted/ put in the strip and if the card detects Reactive then the strips change its colour.

As per the version of O.P., the test of HBsAG cost around Rs. 200/- (Rupees Two Hundred) only to Rs. 400/- (Rupees Four Hundred) only in different Diagnostic Centre. So the question of incurring of Rs. 5,000/- (Rupees Five Thousand) only does not arise at all.

List of documents filed by the O.P. No.1 are as follows :

1. Photocopy of purchase Bill of HBsAG Strip.
2. Original HBsAG strip of the same lot from which the test of the complainant was done.

Having heard, the Ld. Advocate of both the side and on perusal of the Complaint, Written Version and documents filed by the parties the following points are taken to be decided by this Commission.

Points for consideration

1) Whether the complainant is a consumer?

2) Whether the case is maintainable under the CP act 2019?

3) Whether this Commission has its jurisdiction to decide this case? 

4) Whether there is any deficiency in service in the part of the O.P. as alleged by the complainant?

5) Is the complainant is entitled to get any award and relief as prayed for? If so, what extent?

Decision with reason:-

          All the points are taken up together for consideration and decision.

Seen and perused the complaint petition and Written Version (W.V.) filed by the parties which are supported by the affidavit, documents filed by the parties. We are also heard arguments of both the parties in full length.

The complainant resides in the jurisdiction of P.O. and P.S.- Siliguri, District- Darjeeling and the O.P. is also carrying his business in P.O. and P.S.- Siliguri, District- Darjeeling. Thus, the Commission has no doubt to hold that as per the Consume Protection Act, 1986 and Consumer Protection Act, 2019 this Commission has its territorial jurisdiction to decide this case.  

At the time of argument Ld. Advocate of the Complainant submits that the Complainant has been able to prove its case against the O.P.s not only through his Written Deposition but also by producing documents.

It is fact that the complainant examined her blood for Hepatitis B surface antigen on 18.11.2017 from the O.P.in which the O.P. delivered the report as showing the test result reactive and the O.P. also not denied this fact. Hence, this Commission holds that as per the Consume Protection Act, 1986 and Consumer Protection Act, 2019 the complainant is a very much consumer in this instant case.

In this case, the complainant examined her blood for Hepatitis B surface antigen on 18.11.2017 from the O.P.in which the O.P. delivered the report as showing the test result reactive. After getting the said blood examination report from the O.P. the complainant was very much shocked and after couple of days decided to visit some reputed medical institutions for treatment. To verify and to cross check the said report the complainant obtained another three reports from three different laboratories, i.e., on 26.10.2017 from 3 Gen Diagnostics, on 27.10.2017 from Kins Care Diagnostic and on 28.10.2017 from Dr. Mallick’s Pathology Lab and the all three laboratory’s report dated 26.10.2017, 27.10.2017 and 28.10.2017 came with a result of non- reactive. The complainant knocked the door of the O.P. for quarry of their report but the O.P. behaved roughly did not pay any importance to complainant’s quarry. Being a lady the complainant was much harassed and expensed Rs. 5,000/- (Rupees Five Thousand) only to verify and clear the doubt of the O.P.’s act. She wasted time and physically spent several times for such act of the O.P.

In his Written Version the O.P. denied most of the allegations made by the complainant. The O.P. argued that the present case is bad for mis- joinder and non- joinder of necessary party 3 Gen Diagnostics, Kins Care Diagnostic and Dr. Mallick’s Pathology Lab are necessary party. As per the O.P., the testing of HBsAG is done through Hepa Card and it is a very similar process as test conducted for diabetic (Sugar) test where the sample of blood collected by the Diagnostic Centre are dropped/ inserted/ put in the strip and if the card detects Reactive then the strips change its colour.

In this instant case, the complainant examined her blood for Hepatitis B surface antigen on 18.11.2017 in the O.P.’s laboretory in which the O.P. delivered the report as showing the test result reactive. To verify and cross check the said report dated 18.11.2017 the complainant again tested her blood from three different laboratories, i.e., on 26.10.2017 from 3 Gen Diagnostics, on 27.10.2017 from Kins Care Diagnostic and on 28.10.2017 from Dr. Mallick’s Pathology Lab which was stated in Para No. 06 of her complaint and all the three laboratory’s reports dated 26.10.2017, 27.10.2017 and 28.10.2017 came with a result of non- reactive.

Now, the complainant is challenging the report dated 18.11.2017 and stated that after getting the said report dated 18.11.2017 she did another three test and obtained another three reports from three different laboratories, i.e., on 26.10.2017 from 3 Gen Diagnostics, on 27.10.2017 from Kins Care Diagnostic and on 28.10.2017 from Dr. Mallick’s Pathology Lab but the documents filed by the complainant shows that the date of said three tests were done before the test was done on 18.11.2017 at the O.P.’s Laboratory. So, this Commission holds that the complainant is not able to prove her case.   

Hence, it is,

ORDERED

That the Consumer Case No. 99/2017 be and same is dismissed in contest against the O.P. (M/S Mak Diagnostic) without cost.

          Let a copy of this judgment be given to the parties directly or through their representative Ld. Advocate for compliance free of cost.