Reserved

State Consumer Disputes Redressal Commission UP, Lucknow

Appeal No.1903 of 2011

Fatima Hospital, Mau Nath Bhanjan, District Mau

Through its Administrator.                                    ...Appellant.

                                                Versus

1- Anand Kumar s/o Mr. Dinesh Upadhyay,

    R/o Jajauli, Tehsil, Madhuban, Distt. Mau.

2- National Insurance Compare Ltd., Main

    Branch, Bheeti, Janpad  Mau.                     ...Respondents

Present:-

1- Hon’ble Sri Rajendra  Singh, Presiding Member.

2- Hon’ble Sri Sushil Kumar, Member.

Sri Vijay Kumar Yadav, Advocate for appellant.

Sri A.K. Mishra, Advocate for respondent no.1.

Sri Neeraj Paliwal, Advocate for respondent no.2.

Date  25.05.2022

JUDGEMENT

Per Mr. Rajendra Singh, Member: This appeal has been filed under section 15 of Consumer Protection Act, 1986 against the judgment and order dated 05.09.2011 passed by the Learned District Consumer Forum, Mau, in complaint case no.28 of 2005, Anand Kumar Upadhyaya & Anr.  Vs. Administrator, Fatima Hospital & Anr.

The brief facts of the appeal are that, that the impugned order dated 05.09.2011 passed by the learned District Forum is erroneous both on facts and law. The basis of the finding recorded by the Learned District Consumer Forum is about non-confirmatory test and is against the material on record. The Learned Forum completely ignored the Master Lab Form dated 17 October 2004 wherein a specific written advice was contained that the screening test is to be confirmed through Western Blot Method; a confirmatory test. The learned Forum completely ignored the medical literature and the stand taken by the appellants that the screen test methods have test limitations. In pathological tests particularly screening test  which have tested limitations, no adverse finding of medical negligence can be attributed against the Testing Lab. The complainant filed a completely misconceived complaint case falsely alleging medical negligence against the appellants. The complainant was fully satisfied during the treatment administered on her. The appellants hospital is a well equipped hospital with highly qualified and well experienced doctors and paramedical staff. The learned District Forum palpably ignored categoric assertions by the appellants in their written statement that despite advice for confirmatory tests the patient/complainant did not agree for it and in fact insisted for discharge; the patient was therefore referred to BHU for further management. The learned Forum ignored the fact that the appellants strongly disputed the alleged report of Thilak Pathology. From the record it is apparent that even at Gorakhpur Elisa Method (screening tests) was adopted and which cannot medically be said to be an authentic confirmatory test which can only be done by Western Blot Method as advised by the appellant but not followed by the complainant. The learned District Forum completely mis-appreciated the fact of insurance of the appellants treating doctor and illegally exempted the insurance company from liability. Even otherwise the judgment and order dated 5 September 2011 suffers from illegalities and is liable to be set aside by this Hon’ble Commission.

We have heard the learned counsel for the Appellant Mr. Vijay Kumar Yadav and learned counsel for the respondent  no.1 Mr. A.K. Mishra and ld. Counsel for the respondent no.2 Sri Neeraj Paliwal. We have perused the pleadings, evidence and documents present on the recor