NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
C. Viswanath, Presiding Member, Ram Surat Ram Maurya, Member and Subhash Chandra, Member
Cpl. Ashish Kumar Chauhan (Retd) – Complainant
versus
Commanding Officer, 171 Military Hospital
and Ors. – Opp. Parties
Consumer Case No.647 of 2017
Decided on 27.8.2021

IMPORTANT POINTS
(1) Allegation that the opponents had continuously harassed the complainant for more than 14 years and adopted unreasonable, unjustified and autocratic action is also not liable to be believed inasmuch as no complaint against any opponent was made during service period.
(2) Jurisdiction of this Commission to go into the validity of discharge/retirement of the complainant is barred under Armed Forces Tribunal Act, 2007

Headnote:

Consumer Protection Act, 1986 – Section 21(a)(i) [Consumer Protection Act, 2019 – Section 58(1)(a)(i)] – Complaint before the National Commission - Complainant filed an I.A. for enhancement of compensation to Rs.2.5 crore in addition to the original compensation of Rs.95,03,00,000/-as claimed – Facts: Complainant applied and was selected for the post of watchman in Food Corporation of India, but was declined appointment due to his disease which he suffered when he was in Indian Army; hence, he suffered loss of Rs.2.5.crore – Application rejected – Other application filed by Complainant is also rejected - While on duty under “Operation Parakram”, Complainant was admitted to Opp. Party Hospital – Complainant developed HIV infection after blood transfusion and his disease was made ‘non-attributable to service’ per Medical Board – Complainant alleges violation of human rights and defamation - Part of the present complaint is for compensation, alleging medical negligence, violation of human right and defamation which is not covered under the term service matters as such this complaint is not barred under Armed Forces Tribunal Act, 2007 - No Expert Opinion to the effect that at the time of blood transfusion in the body of the complainant, the staff of Opp. Party committed any negligence - No reason to believe that record relating to the treatment of the complaint of June-July 2002 is still in custody of the opposite parties - No adverse inference can be drawn against the Opp. Parties that they withheld material evidence in their possession - Allegation that opponents continuously harassed the Complainant for more than 14 years, adopted unreasonable, unjustified and autocratic action is also not liable to be believed, as no complaint against any opponent was made during service period - Jurisdiction of this Commission to go into the validity of discharge/retirement of the complainant is barred under Armed Forces Tribunal Act, 2007.

Held: So far as jurisdiction of this Commission being barred under Armed Forces Tribunal Act, 2007, is concerned, Armed Forces Tribunal Act, 2007 has been enacted with an object to adjudicate the disputes with respect to commission, appointment, enrolment and condition of service in respect of armed forces and the appeal arising out of an order, finding or sentence of court martial, by Armed Forces Tribunal. Section 33 of this Act bars jurisdiction of civil court in respect of these matters. Service matter has been defined under Section 2 (o) of this Act, in which premature retirement, superannuation and termination from service are included. A part of the present complaint is for compensation, alleging medical negligence, violation of human right and defamation which is not covered under the term service matters as such this complaint is not barred under Armed Forces Tribunal Act, 2007, as a whole. However, this Commission has no jurisdiction to go into the validity of discharge of the complainant from service in terms of his enrolment and not giving extension to him and consequent damages claimed by the complainant.

The complainant submitted that he was admitted at 171 Military Hospital in July 2002 as proved from Annexures-C-6. At that time, one unit blood, infected with HIV virus, was transfused in his body on 10.07.2002, which had caused HIV infection to him. 171 Military Hospital did not have licence for a blood bank, nor was any pathologist and transfusion expert posted there. The medical staff, who had transfused the blood, did not conduct HIV test/screening of the blood. The consent for transfusion of the blood was not taken from the complainant or his family member. The screening report of the blood was liable to be obtained before transfusion and attached to the medical case sheet of the complainant. There is nothing on the record to prove that Standard Operating Procedure was followed at the time blood transfusion to the complainant. At the time of recruitment, the complainant was found medically fit. Burden lies upon the opposite parties to prove that no negligence was committed at the time of blood transfusion in 2002. The opposite parties did not conduct any test of the complainant relating to HIV from 2002 to 2013. It is only in 2014, HIV test of the complainant was conducted, in which HIV positive was diagnosed on 21.05.2014. The disability of the complainant was attributed to service, which has been accepted in Medical Board dated 12.12.2014 and 24.06.2015 (Annexure-C-7) and in reply dated 14.12.2016 (Annexure-C-14) supplied under Right to Information Act, 2005. Under the Rules, findings of Medical Board can be challenged within one year. Medical Board dated 12.12.2014 and 24.06.2015 were not challenged. The Court of Inquiry conducted by the opposite party was not proper in as much as the complainant was an important witness but he was neither examined nor given opportunity to adduce evidence. Its report cannot be relied upon. The medical papers relating to the treatment of the complainant of July 2002 are in custody of opposite parties-3 to 5 as these papers were confidential documents but they are deliberately withholding it.

In the present case, there is no Expert Opinion to the effect that at the time of blood transfusion in the body of the complainant, the staff of 171 Military Hospital had committed any negligence. As such the complaint is liable to be dismissed on this short ground alone.

According to the opposite parties, the documents relating to the treatment of the complaint in June-July, 2002 at 171 Military Hospital were weeded out. Only discharge summary, which was obtained by 302 TRU Pathankot, for making necessary entry in Service Book of the complainant, remained there. When the complainant pointed out Personal Occurrence Report (POR) action of hospitalisation during July 2002 and demanded this paper, through letter dated 24.09.2014, then his Service Book was opened and discharge summary was found there, which were supplied to him through dated 29.09.2014. If other papers were available, then there would have been no reason for not supplying those papers. Indian Medical Council (Professional Conduct Etiquette and Ethics) Regulation, 2002, was published in Gazette of India dated 06.04.2002. As per clause-1.3.1, the medical records pertaining to an indoor patient have to be maintained for three years. Under clause-1.3.2, if a medical record is demanded by the patient, then it shall be issued within 72 hours to him. Under clause-7.16, for performing operation, the consent of the patient or his family member has to be obtained. From this Regulation 2002, it is clear that the medical records pertaining to an indoor patient has to be maintained for three years only. As such, at this time, there is no reason to believe that record relating to the treatment of the complaint of June-July 2002 are still in custody of the opposite parties, particularly when 171 Military Hospital, itself was a temporary hospital. As such no adverse inference can be drawn against the opposite parties that they had withheld material evidence in their possession. According to this Regulation, no consent of the patient or his family member was required for blood transfusion.

Absolutely vague allegations without giving name, time, date and place have been made that the opposite parties have spread the confidential information of the complainant regarding to his HIV infection to all the persons of his unit including Section Commander due to which his human right has been violated and he was defamed, which resulted a lot of mental torture and humiliation to him. Defamation and violation of human right is an act of tort and has to be proved beyond reasonable doubt before holding any person as guilty of it. No independent oral or documentary evidence has been adduced in this respect. The opposite parties, who were posted at different places, cannot be held either individually or jointly liable for defamation and violation of human right of the complainant, in the absence of any evidence against them. Allegation that the opponents had continuously harassed the complainant for more than 14 years and adopted unreasonable, unjustified and autocratic action is also not liable to be believed inasmuch as no complaint against any opponent was made during service period. As held above, jurisdiction of this Commission to go into the validity of discharge/retirement of the complainant is barred under Armed Forces Tribunal Act, 2007 as such we refrain ourselves to go in that issue. In view of the fact that the complainant is a retired air veteran and suffering from dreadful disease, we refrain from imposing exemplary costs as he had concealed material fact and evidence in his possession and thereby attempted unjust enrichment.

(Paras 2, 3, 9, 12, 15, 16 & 18)

Result: Complaint has no merit and is dismissed, without costs.