Challenges an order of the National Consumer Disputes Redressal Commission, New Delhi[In Consumer Complaint No. 647 of 2017.] (hereafter, “Commission”). The application by – CPL Ashish Kumar Chauhan (hereafter, “appellant”) for compensation was dismissed by the Commission (Para 1)
He was, therefore, admitted to 171 MH, Samba. On 10.07.2002, whilst undergoing treatment at the aforementioned facility, Lt. Col Devika Bhat, posted as MO (Physician), advised him to undergo a blood transfusion. One unit of blood was therefore, transfused to the appellant, for the management of severe symptomatic anemia. The said military hospital facility did not have a license for a blood bank but has been termed by the Indian Army as an “ad-hoc blood bank”. (Para 3)
The appellant endeavored to trace the source of the virus and realized that the transfusion of virus infected blood at 171 MH Samba in 2002 was the cause of his condition. After the detection of the HIV virus, the first medical board was held on 11.06.2014 and as per the findings of the Medical Board, the infection with HIV was made – “non-attributable to service”. (Para 5)
The case sheet shows that though on 10.07.2002, one unit of blood was transfused to the appellant, but whether Enzyme Linked Immunosorbent Assay (ELISA) test was conducted before infusing the blood in the appellant’s body was conspicuously absent from that medical case sheet. (Para 6)
Thus, Medical Boards were held on 12.12.2014 and 24.06.2015 and in terms of the medical board proceedings, the appellant’s disability was attributable to service owing transfusion of one unit of blood at 171 Military Hospital on 10th July 2002. His disability and the disability qualifying elements for the purpose of disability pension were also assessed by the medical board @ 30% for two years. By letter dated 22.03.2016[Letter No RO/3305/3/Med.], PCDA (P) Allahabad endorsed the findings of the Release Medical Board and agreed with the sanctioned disability pension. (Para 7)
The Appellate Authority by its order[Dated 12.06.2018.] rejected the appeal and observed that best efforts were made by the respondent authorities to trace the appellant’s medical document and even admission and discharge documents were supplied to him whenever available with the respondent. (Para 11)
Meanwhile, proceedings of the Court of Inquiry (CoI) were held on 01.07.2018 to investigate circumstances under which the appellant was transfused blood at the 171 Military Hospital, Samba and the CoI concluded by its findings that blood provided to the appellant was duly screened for the HIV and other markers in vogue at the relevant time and on examination of all the witnesses, no negligence or lapse can be attributed on the part of physician or the support staff at the said military facility. (Para 12)
The Commission dismissed the appellant’s complaint and observed that no expert opinion was adduced or proved before it for establishing medical negligence during the blood transfusion against the respondent/opposite parties. It was also observed that no reason existed for the opposite parties to deny sharing of the appellant’s medical records, and in fact, the discharge certificate, when found was duly supplied to the appellant. (Para 15)
The amici and the appellant argued that it is the onus of the respondents to establish that the two armed forces (Indian Army and IAF) were not negligent, because of the direct acts of their doctors and the hospital. Reference to a letter dated 12.06.2018 was made in which the Respondent No 1 admitted in writing that 171 MH was not authorized to operate any blood bank and therefore, no pathologist was authorized or appointed at the facility. The appellant also referred to an RTI reply[Letter no. 4180/Adm./RTI/2019, dated 3.7.2019.] stating that “there was no transfusion medicine expert (doctor) available and no blood grouping and cross-matching test report is available”. (Para 19)
The amici further argued that the respondents failed to provide any material evidence, such as the ELISA/HIV test and blood compatibility report of the blood unit that was transfused to the appellant in 2002, to demonstrate that they followed their own exhibited ‘Transfusion Medicine Technical Manual and Standard Operating Procedures’ that is to say that before any blood transfusion took place, it was compulsory to conduct an ELISA test of the blood unit to determine whether it was HIV infected or not, ensuring that it is safe for transfusion to HIV negative person. (Para 20)
The amici and the appellant submitted that the respondents failed to secure a written informed consent bearing his signature both before the Commission as well as this court. As a consequence, the HIV negative report dated 5.3.2014 cannot be accepted. (Para 21)
It was further argued that since the respondents have explicitly admitted that the appellant contracted his disability due to the blood transfusion, there is no need for further deliberation on the matter, as per Section 58 of the Indian Evidence Act, 1872; an admitted fact need not be proven. (Para 24)
The first question that the court has to consider is whether the appellant’s case is under the CPA 1986. The respondents contend that the appellant cannot claim to be a consumer, and the medical facilities extended to him, through the IAF and army hospitals, do not fall within the ambit of the CPA 1986, because all armed force personnel are required, as part of their duties, to show fitness, and are subjected to periodic mandatory medical tests. The terms and conditions of engagement of armed forces personnel, and the army/IAF ecosystem are geared to ensure the fitness and sound medical shape of its personnel. Therefore, even the doctors and other personnel within the medical system are subjected to army/IAF discipline and rules and regulations. In these circumstances, Army hospitals and similar facilities cannot be considered as covered by CPA 1986. (Para 43)
Section 1 (4) of CPA 1986, (which was in force when the appellant preferred his complaint) reads as follows:
“1. Short title, extent, commencement and applications:
(4) Save as otherwise expressly provided by the Central Government by notifications, this Act shall apply to all goods and services.” (Para 49)
In India, medical negligence is said to have been established by an aggrieved plaintiff or complainant when it is shown that the doctor or medical professional was in want of, or did not fulfil the standard of care required of her or him, as such professional, reasonably skilled with the science available at the relevant time. In other words, a doctor is not negligent if what he has done would be endorsed by a responsible body of medical opinion in the relevant speciality at the material time. This test is known as the Bolam test[So called, due to the case: Bolam v Friern Hospital Management Committee 1957(2) All.ER 118.] and has gained widespread acceptance and application in Indian jurisprudence. (Para 67)
When constituted or read together, all these lapses-which may be seen singly as small or minuscule, add up to one thing: lack of adherence to or breach of the relevant standards of care reasonably expected from a medical establishment. Therefore, whilst pinpointed accountability of one or some individuals is not possible, nevertheless the systemic failure in ensuring a safe transfusion of blood to the appellant, is the only irresistible inference. These facts establish medical negligence, and therefore, vicarious liability on the part of the IAF and the Indian Army. The former is the appellant’s immediate employer; the latter was the organization controlling and in charge of 166 MH and 177 MH. (Para 70)
All these facts and circumstances, in the opinion of this court, prove and establish that by reasonable standards of evidence, the appellant has justified the invocation of the principle of res ipsa loquitor. (Para 72)
The above analysis leads this court to the conclusion that the condition in which the appellant found himself, was the direct consequence of the two hospital-establishments and their breach of the standards of care, resulting in the transfusion of the HIV positive infected blood into the appellant, which was the causative factor. The necessary foundational facts, to hold that the application of res ipsa loquitur was warranted, were proved in all detail. The respondents failed to discharge the onus which fell upon them, to establish that due care was in fact exercised and all necessary care standards, applicable at the time, were complied with. As a result, it is held that the respondents are liable to compensate the appellant for the injuries suffered by him, that are to be reckoned in monetary terms. (Para 73)
As a result of the above discussion, it is held that the appellant is entitled to compensation, calculated at Rs. 1,54,73,000/- (Rupees one crore fifty four lakhs seventy three thousand only) towards compensation on account of medical negligence of the respondents, who are held liable, for the injury suffered by the appellant. It is also held that since individual liability cannot be assigned, the respondent organizations (IAF and Indian Army) are held vicariously liable, jointly, and severally, to the above extent. The amount shall be paid to the appellant within six weeks by the IAF, his employer (Para 92)
SUPREME COURT OF INDIA
2023 STPL(Web) 298 SC
[2023 INSC 857]
Cpl Ashish Kumar Chauhan (Retd.) Vs. Commanding Officer & Ors.
Civil Appeal No(S). 7175 of 2021-Decided on 26-9-2023
https://stpllaw.in/wp-content/uploads/2023/10/2023-STPLWeb-298-SC.pdf
