NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
R.K. Agrawal, President and Dr. S.M. Kantikar, Member
Government of India and Ors. – Appellants
versus
Master Akash – Respondent
First Appeal No.764 of 2012
(Against the Order dated 11/09/2012 in Complaint No.25/2007 of the State Commission Delhi)
Decided on 25.5.2022

IMPORTANT POINT
Medical Negligence – Just Compensation - To award just and fair compensation, Courts have to consider several points like the actual expenses for the medical treatment, travel and emotional sufferings of the parents.

Headnote:

(i) Consumer Protection Act, 1986 – Section 21[Consumer Protection Act, 2019 – Section 58] – Services – Medical Negligence – HIV/ Wrong Blood Transfusion – Appeal against order of State Commission whereby Appellants were held liable for Medical Negligence - Opposite Parties failed to produce the blood bank register and the test reports to prove that the blood units were HIV negative - It is pertinent to note the B+ blood was issued twice, once 50 ml on 10.06.1998 vide D No. 3439 and another 100 ml on 16.06.1998 vide D. No. 3481. It was transfused on 13th and 16th June, 1998. There is nothing on record to ascertain how only 50 ml and 100 ml blood was drawn and the methodology used for HIV testing. No details of Microbiology/Serology Report creates doubt in the opinion of this Court - There was possibility of HIV infection due to other sources cannot be ruled out. Therefore, it is difficult to conclusively attribute negligence of the Opposite Parties who transfused blood to Master A – Thus, child contracted HIV and throughout his life he has to live with HIV and he subsequently likely to develop complications of AIDS - At present, the child is around 24 years of age. Certainly, he has already undergone untold sufferings and in future, he will still continue to suffer HIV related stigma and discrimination. The compensation cannot be measured in monetary terms – On facts, the compensation awarded by the State Commission, accordingly, the Appellant is directed to pay Rs. 10 lakh to the Complainant – Appeal dismissed. [Paras 15 to 22]

(ii) Consumer Protection Act, 1986 – Section 21 [Consumer Protection Act, 2019 – Section 58] – Services – Medical Negligence – HIV – Blood Transfusion - Whether or not the treating doctor had taken a valid or real Consent from the Complainant before the blood transfusion - The allegation of the Complainant’s son of having contracted HIV from the transfusion of contaminated blood at KSCH, which was supplied by RSSB blood bank. As per Schedule F (K) to the Drugs and Cosmetic Rules, it is made try to perform tests on blood for transmissible diseases like HIV, Hepatitis B and C, Malarial Parasites, VDRL and syphilis. Complete donor screening by detailed questionnaire is very important. If the blood donors are in window period, HIV test may be negative – Thus, The Opposite Parties have not placed any cogent evidence in this regard. Therefore, it amounts to deficiency in service of the treating doctors. [Para 18]

(iii) Consumer Protection Act, 1986 – Section 21[Consumer Protection Act, 2019 – Section 58] – Services – Medical Negligence – HIV – Blood Transfusion – Medical Negligence fastened on OP’s - Just Compensation – Award of - The incident occurred in 1998 and now, it is beyond 2 decades, therefore at this stage discussion on “ifs” and “buts” is certainly injustice to the HIV victim and against the object of the benevolent Consumer Protection Act. It is an admitted fact that Master Akash during 3 months of age received B+ve blood for the Adhesinolysis operation in the year 1998. Thereafter, he suffered recurrent respiratory infections and was detected HIV in early year 2006 - The Complainant, in his prayer, claimed compensation of Rs. 22 lakh with interest @ 18% per annum. To award just and fair compensation, Courts have to consider several points like the actual expenses for the medical treatment, travel and emotional sufferings of the parents – The Court cannot ignore that the life expectancy of Master A would depend on strict regular ART and healthy diet – Also, at present, the child is around 24 years of age. Certainly, he has already undergone untold sufferings and in future, he will still continue to suffer HIV related stigma and discrimination. The compensation cannot be measured in monetary terms. In our view, on priority, he should be provided adequate health facilities (regular ART treatment) and benefits through different welfare schemes of the Govt. for HIV positive people. [Paras 19 to 21]

Result: Appeal dismissed.