R C PUROHIT Vs. USHA DEVADA

JUDGEMENT

(1.) This appeal under Sec.15 of the Consumer Protection Act, 1986 (hereinafter referred to as "the Act of 1986") has been filed by the appellant against order dated 3.4.1998 passed by the District Forum, Jodhpur, in Complaint Case No.491/97 by which the complaint filed by the complainant respondent under Sec.12 of the Act of 1986 was allowed partially in the manner that the appellant was ordered to pay Rs.10,000 as compensation for mental agony and Rs.3,811 as expenses incurred by the respondent for purchase of Antid injection etc.

(2.) It arises in the following circumstances: that the complainant respondent had filed a complaint on 24.9.1997 before the District Forum, Jodhpur inter alia stating that under advice of Dr. Vimla Kachhwaha and since she was pregnant, she approached the diagnostic centre of the appellant known as RP Diagnostic Centre (hereinafter referred to as "the centre) for purpose of test of her blood group. On 3.12.1995 the blood group of the respondent was tested by the appellant at his own centre and it was declared that the blood group of the respondent was 'o')' RH negative. It was further stated in the complaint that the blood group of her husband was RH positive. Since the centre of the appellant had declared the blood group of the respondent as negative, therefore, she had to undergo antibody test and she had to take injection Antid 350 (Vinoblin) one each before and after delivery of female child. It was further stated in the complaint that when the blood group was tested in the unit of Dr. Vimla Kachhawaha in the Umed Hospital, Jodhpur, it was found to be of 'o' RH positive, therefore, the complainant respondent further approached the centre of the appellant again for confirmation and as per reort dated 11.8.1997 it was found positive given by the appellant centre. Thus because of the earlier report dated 3.12.1995 the respondent had to take several precautionary medicines as stated above. Thus the report was wrongly given by the appellant centre and for that deficiency the claim was preferred. A reply was filed by the appellant before the District Forum inter alia stating that the sample which was brought to the centre on 3.12.1995 was found of RH negative and it was taken not by the appellant but was brought by the respondent herself and thus report was given so and thus there was no negligence on the part of the appellant in giving the report on 3.12.1995. It was further stated that since there was normal delivery of the respondent on 31.3.1996 and thus no complications as alleged by the respondent had arisen in this case. Hence it cannot be said that for the report dated 3.12.1995 the respondent had to suffer. Apart from that it has been further stated that in case of diagnostic centre the diagnosis is based on opinion, therefore, there can be two opinions and from this point of view the report of the appellant centre if found wrong, it cannot be said that it was given deliberately and by a person who was not competent to give the report. Hence no case, complaint be dismissed. The District Forum after hearing both the parties through impugned order dated 3.4.1998 partially allowed the complaint of the complainant respondent in the manner as indicated above inter alia holding that the blood test which was got conducted by the appellant on 3.12.1995 was taken by the respondent not from outside and thus the test was conducted by the appellant after taking sample of the blood from the respondent on the spot. That since thereafter two tests were conducted in respect of the blood group of the respondent and in both of them the blood group 'o' RH positive was found. Thus the report dated 3.12.1995 was wrongly given by the appellant for which there could be no excuse and thus the Forum had found deficiency in service on the part of the appellant in giving the wrong report. Aggrieved from that order this appeal has been filed.

(3.) In this appeal, the main argument of the learned Counsel for the appellant is that the findings of the learned District Forum are erroneous one on two counts: (i) That in cases of diagnosis, since diagnosis is based on opinion, therefore, there can be two opinions and from this point of view, if the report of the appellant's diagnostic centre was found wrong, it cannot be said that it was given deliberately. (ii) That since no damage would have occurred to the respondent because of the wrong report dated 3.12.1995 the amount of compensation awarded by the District Forum was wholly unjust, improper and unreasonable.