2023 Supreme(SC) 994

SUPREME COURT OF INDIA
S. RAVINDRA BHAT, DIPANKAR DATTA, JJ.
CPL Ashish Kumar Chauhan (Retd.) – Appellant
Versus
Commanding Officer and Others – Respondents
Civil Appeal No. 7175 of 2021
Decided On : 26-09-2023

IMPORTANT POINT
Medical negligence – Principle of res ipsa loquitur can be invoked.

Headnote:

(A) Consumer Protection Act, 1986 – Section 23[Consumer Protection Act, 2019 – Section 67] – Medical negligence – Defective blood transfusion causing HIV – Exercise of jurisdiction is legitimate and warranted, since court has before it, all factual material, supported by affidavit of parties – Even if appellate jurisdiction is contested, that it would be unfair to drive appellant to a fresh civil proceeding, particularly having regard to his vulnerability, and would instead, combine its power, drawing source of its jurisdiction under Articles 32 and 142 of Constitution, especially since respondents are armed forces and its authorities. (Para 58)

(B) Consumer Protection Act, 1986 – Section 23[Consumer Protection Act, 2019 – Section 67] – Indian Medical Council (Professional Conduct Etiquettes and Ethics) Regulations, 2002 – Clause 1.3.1 – Pension Regulations for the Army, 1973 – Regulation 173 – Medical negligence – Defective blood transfusion causing HIV – National Commission dismissed appellant’s complaint and observed that no expert opinion was adduced or proved before it for establishing medical negligence during blood transfusion against OPs – Doctor is not negligent if what he has done would be endorsed by a responsible body of medical opinion in relevant speciality at material time – Whilst pinpointed accountability of one or some individuals is not possible, nevertheless systemic failure in ensuring a safe transfusion of blood to appellant, is the only irresistible inference – Appellant is justified in invocation of principle of res ipsa loquitur – However, res ipsa loquitur cannot be the only basis to fasten liability – Necessary foundational facts to hold that application of res ipsa loquitur was warranted, were proved in all detail – Respondents failed to discharge 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 – Respondents are liable to compensate appellant for injuries suffered by him, that are to be reckoned in monetary terms. (Paras 67, 70, 72 and 73)

(C) Consumer Protection Act, 1986 – Section 23[Consumer Protection Act, 2019 – Section 67] – Indian Medical Council (Professional Conduct Etiquettes and Ethics) Regulations, 2002 – Clause 1.3.1 – Pension Regulations for the Army, 1973 – Regulation 173 – Medical negligence – Defective blood transfusion causing HIV – Assessment of compensation or damages for personal injuries – Appellant’s age, as of date, is 47 years – Premature retirement and his rejection by a public sector company, Food Corporation of India (FCI) on the ground of his being HIV positive are aggravated factors – Appellant is entitled to compensation, calculated at Rs. 1,54,73,000/- towards compensation on account of medical negligence of respondents as well as costs of Rs.500,000/-. (Paras 81, 84 and 92)

(D) HIV and AIDS (Prevention and Control) Act, 2017 – Sections 14 and 15 – HIV – Remedial measures – Central Government shall issue necessary guidelines in respect of protocols for HIV and AIDS relating to diagnostic facilities, Antiretroviral therapy and opportunistic Infection Management applicable to all persons and shall ensure their wide dissemination at the earliest, after consultation with all concerned experts, particularly immunologists and those involved in community medicine, as well as experts dealing with HIV and AIDS prevention and cure – These measures and guidelines shall be issued within three months, and widely disseminated, in electronic media, print media and all popularly accessed public websites – In any legal proceeding in which a protected person is a party or such person is an applicant, identity of applicant has to be suppressed by substituting name of such person with a pseudonym in records of proceedings – Elaborate directions issued. (Para 93)

Facts of the case:

Present civil appeal challenges an order of National Consumer Disputes Redressal Commission, New Delhi in Consumer Complaint. Application by appellant for compensation was dismissed by Commission. 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.

Findings of Court:

Appellant was diagnosed HIV positive, and immediately placed under ART which continues till date. His immune system has gone down, due to untreated condition, for some undetermined time. He complains of reduced mobility; IAF itself has characterised his disability, though assigned it a figure of 30% disability; that was, however, sufficient for them to dispense with his service. As time progresses, he would need assistance of a helper. Even conservatively calculated, such a helper would have to be paid about Rs. 10,000/- to Rs. 15, 000/- per month. If a calculation of average of Rs. 10,000/- to Rs. 15,000/- (i.e. Rs. 12,500/-) for twelve years is taken into account, the total sum would be Rs. 18,00,000/- (Rupees eighteen lakhs only).

Result : Appeal allowed.