Held: Keeping in line with the reasoning that furthered the objectives of the CPA 1986, spelt out in Indian Medical Assn. v. V.P. Shantha, in Regional Provident Fund Commissioner v. Shiv Kumar Joshi it was held that the definition of “consumer” under the Act includes not only the person who hires the “services” for consideration but also the beneficiary, for whose benefit such services are hired – Even if it is held that administrative charges are paid by the Central Government and no part of it is paid by the employee, the services of the Provident Fund Commissioner in running the Scheme shall be deemed to have been availed of for consideration by the Central Government for the benefit of employees who would be treated as beneficiaries within the meaning of that word used in the definition of “consumer” – There are several precedents of the Supreme Court, which justify the exercise of jurisdiction u/Art. 32 of the Constitution – The Supreme Court has declared the importance of reaching out to injustice and using its powers, including u/Art. 142 of the Constitution in its various decisions – However, if there are any statutory conditions or limitations, its exercise of Art.142 jurisdiction would have to weigh that in; further, the kind of relief to be given in any one case is entirely fact dependent and involves taking into account all relevant factors, subjective to the record in that case – Further, the court’s ability and jurisdiction to appreciate facts, really is uncontestable – In the instant case, even if, arguendo for some reason, appellate jurisdiction is contested, this court deems that it would be unfair to drive the appellant to a fresh civil proceeding, particularly having regard to his vulnerability, and would instead, combine its power, drawing the source of its jurisdiction u/Arts. 32 and 142 of the Constitution, especially since the respondents are the armed forces and its authorities – The exercise of jurisdiction is legitimate and warranted, since the court has before it, all the factual material, supported by the affidavit of the parties. [Paras 50, 53, 54, 55, 56, 58]
Negligence – Medical Negligence:
Held: Appellant was advised to undergo blood transfusion during operation (Parakram) – He was admitted at 171 Military Hospital and a blood unit was transfused – Allegedly, the said blood unit was indented from 166 Military Hospital – It is a matter of record that the concerned doctors who were professionals, i.e., either at 171 MH or 166 MH, felt so pressured by the absolute necessity to follow the drills that the safeguards preceding safe transfusion to the appellant appears to have been a given a go by, or dispensed with – In these circumstances, the normal duty of care which would have ordinarily applied and did apply as well, was that at both ends i.e., 166 MH and 171 MH, there should have been no doubt that blood had been filtered and found safe for transfusion – Equally, something in the form of other material on record or in the form of the oral testimony by the medical cadre personnel, MO (physician) of 171 MH or who was present in 2002, to show what kind of equipment such as refrigerating unit or other chemical matter to preserve the blood and blood products, even within the safe – When constituted or read together, all these lapses-which may be seen singly as small or minuscule, add up to one thing: lack of adherence to or breach of the relevant standards of care reasonably expected from a medical establishment – Therefore, whilst pinpointed accountability of one or some individuals is not possible, nevertheless the systemic failure in ensuring a safe transfusion of blood to the appellant, is the only irresistible inference – These facts establish medical negligence, and therefore, vicarious liability on the part of the IAF and the Indian Army – The former is the appellant’s immediate employer; the latter was the organization controlling and in charge of 166 MH and 177 MH. [Paras 3, 70]
Negligence – Medical Negligence – Res ipsa Loquitur – Application of: Held: In the instant case, the condition in which the appellant found himself, was the direct consequence of the two hospital-establishments and their breach of the standards of care, resulting in the transfusion of the HIV positive infected blood into the appellant, which was the causative factor – The necessary foundational facts, to hold that the application of res ipsa loquitur was warranted, were proved in all detail – The respondents failed to discharge the 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 – As a result, it is held that the respondents are liable to compensate the appellant for the injuries suffered by him, that are to be reckoned in monetary terms. [Paras 73]
Negligence – Medical Negligence – Relief of damages: Held: Medical negligence, or negligence is tied to two concepts – At the one end is the duty of care-and establishing its breach, and thereby fault-and resultant injury – At the other end is remedial usually restitution, in monetary terms, by payment of damages – The ingenuity of common law has been to adapt and evolve, through refinement, and reinvention, the idea of duty to care – In the case of medical professionals, or other professionals, for instance, their duty to care not only involves the professionals’ assessment of the suitability of treatment, or use of technology, but the concomitant duty to inform the patient (or consumer) of the likely results, or even the risk(s) because the service recipient, so to say, has to bear the consequent consequences – Damages, in theory, can have no limit – Yet, the duty of care is woven with the idea of causation or proximity – Thus, only one is liable in law to the extent of one’s actions, which cause the injury – Equally, damages are limited to consequences which are reasonably foreseeable – In the instant case, the appellant is entitled to compensation of ₹1,54,73,000/(Loss of earnings,₹86,73,000/- + Mental agony, ₹50,00,000/- + Future care, ₹18,00,000/-). [Paras 74, 81, 84, 89]
Directions – In keeping with the mandate of the HIV and AIDS (Prevention and Control) Act, 2017, the following directions are issued to the Central and State Governments:
Held: 1) Under s.14 (1) of the HIV Act, the measures to be taken by the Central Government and all the State Government are, to provide, diagnostic facilities relating to HIV or AIDS, Antiretroviral therapy and Opportunistic Infection Management to people living with HIV or AIDS; 2) The 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 the concerned experts, particularly immunologists and those involved in community medicine, as well as experts dealing with HIV and AIDS prevention and cure; 3) Under s.15 (1) & (2) of the HIV Act, the Central government and every State Government shall take measures to facilitate better access to welfare schemes to persons infected or affected by HIV or AIDS – Both the Central and State Governments shall frame schemes to address the needs of all protected persons; 4) Under s.16 (1) of the HIV Act, the Central and all the State Governments, shall take appropriate steps to protect the property of children affected by HIV or AIDS; 5) The Central and every State Government shall formulate HIV and AIDS related information, education and communication programmes which are ageappropriate, gender-sensitive, non-stigmatising and non-discriminatory; 6) The Central Government shall formulate guidelines [u/s.18(1) of the HIV Act] for care, support and treatment of children infected with HIV or AIDS; in particular, having regard to s.18 (2) “notwithstanding anything contained in any other law for the time being in force”, the Central Government, or the State governments shall take active measures to counsel and provide information regarding the outcome of pregnancy and HIV- related treatment to the HIV infected women; 7) It is further directed that u/s. 19 of the HIV Act, every establishment, engaged in the healthcare services and every such other establishment where there is a significant risk of occupational exposure to HIV, for the purpose of ensuring safe working environment, shall
(i) provide, in accordance with the guidelines, firstly, universal precautions to all persons working in such establishment who may be occupationally exposed to HIV; and secondly training for the use of such universal precautions; thirdly post exposure prophylaxis to all persons working in such establishment who may be occupationally exposed to HIV or AIDS; and (ii) inform and educate all persons working in the establishment of the availability of universal precautions and post exposure prophylaxis; 8) By reason of s.20 (1) of the HIV Act, the provisions of Chapter VIII of the HIV Act apply to all establishments consisting of one hundred or more persons, whether as an employee or officer or member or director or trustee or manager, as the case may be – In keeping with proviso to s.20 (1) of the HIV Act, in the case of healthcare establishments, the said provision shall have the effect as if for the words “one hundred or more”, the words “twenty or more” were substituted; 9) Every person who is in charge of an establishment, mentioned in s.20 (1) of the HIV Act, for the conduct of the activities of such establishment, shall ensure compliance of the provisions of the HIV Act; 10) Every establishment referred to in s.20
(1) of the HIV Act has to designate someone, as the Complaints Officer who shall dispose of complaints of violations of the provisions of the HIV Act in the establishment, in such manner and within such time as may be prescribed; 11) The Secretary, Department of Labour of every state shall ensure the collection of information and data relating to compliance with ss. 19 and 20 of the HIV Act, in regard to designation of a complaint officer, in all the factories, industrial establishments, commercial establishments, shops, plantations, commercial offices, professional organizations, and all other bodies falling within the definition of “establishments”; 12) Every court, quasi-judicial body, including all tribunals, commissions, forums, etc., discharging judicial functions set up under central and state enactments and those set up under various central and state laws to resolve disputes shall take active measures, to comply with provisions of s.34 of the HIV Act. [Para 93]
LIST OF CITATIONS AND OTHER REFERENCES
Smt. Savita Garg vs. The Director, National Heart Institute [2004] SUPP. 5 SCR 359; Laxman Thamappa Kotgiri v G. M., Central Railway (2007) 4 SCC 596; Kishore Lal vs. Chairman, Employee State Insurance Corporation [2007] 6 SCR 139; Indian Medical Assn. v. V.P. Shantha [1995] Supp 5 SCR 110; Regional Provident Fund Commissioner v Shiv Kumar Joshi [1999] 5 Suppl. SCR 294; Haryana Urban Development Authority v Vidya Chetal [2019] 12 SCR 516; Joint Labour Commissioner v Kesar Lal [2020] 5 SCR 176; Nilabati Behara v State of Orissa 1993 (2) SCC 746; Delhi Development Authority v. Skipper Construction Co. (P) Ltd [1996]
2 Suppl. SCR 295; Anadi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani [1989] 2 SCR 697; P.S.R. Sadhanantham v. Arunachalam [1980] 2 SCR 873; Gunwant Kaur v Municipal Committee Bhatinda; ABL International Ltd. & Anr. V Export Credit Guarantee Corporation of India Ltd. & Ors. (2004) 3 SCC 553; V. Kishan Rao v Nikhil Super Speciality Hospital & Anr. [2010] 5 SCR 1; Raj Kumar v. Ajay Kumar [2010] 13 SCR 179; K. Suresh v. New India Assurance Co. Ltd [2012] 11 SCR 414; Abhimanyu Partap Singh v. Namita Sekhon & Anr. [2022] 16 SCR 1 – relied on.
V. Kishan Rao v Nikhil Super Speciality Hospital & Another [2010]
5 SCR 1.; Nizam Institute of Medical Sciences v Prasanth S. Dhananka & Ors. [2009] 6 SCC 1: [2009] 9 SCR 313; Fakruddin versus Principal, Consolidation Training Institute & Ors. [1995] Supp. 1 SCR 389; State of Uttaranchal & Ors. Vs. Kharak Singh [2008] 12 SCR 54; A. K. Kraipak & Ors. Vs. UOI & Ors. [1970] 1 SCR 457; State ex rel. J. G., N. S. & J. T Decided on September 25, 1997; M/S. Spring Meadows Hospital & Anr. versus Harjol Ahluwalia Through K.S. Ahluwalia & Anr. [1998] 2 SCR 428; Savita Garg vs. The Director, National Heart Institute [2004] Supp. 5 SCR 359; Nivedita Singh v Dr Asha Bharti 2021 SCC OnLine SC 3165; Jacob Mathew v. State of Punjab [2005] Supp 2 SCR 307; Martin F D’Souza v. Mohd Ishfaq [2009] 3 SCR 273; Pani Ram vs. Union of India 2021
(9) SCR 1024; Unitech v. Telangana State Industrial and Infrastructural Development Corporation 2021 (1) SCR 1064; Arun Kumar Mangalik v. Chirayu Health and Medicare Ltd. [2019] 3 SCR 281; Bombay Hospital and Medical Research Centre v Asha Jaiswal [2021] 10 SCR 1118; Malay Kumar Ganguly v Dr. Sukumar Mukherjee [2009] 13 SCR 1; Sidram v Divisional Manager [2022] 8 SCR 403; V. Krishna Kumar v State of Tamil Nadu [2015] 8 SCR 100 – referred to.
Bolam v Friern Hospital Management Committee 1957(2) All.ER 118; Sidaway v Board of Governors of the Bethlem Royal Hospital & the Maudsley Hospital [1985] AC 871; Montgomery v Lanarkshire Health Board 2015 UKSC 11; Australian High Court in Rogers v Whittaker 1992
175 CLR 479 – referred to.
Indian Medical Council (Professional Conduct Etiquettes and Ethics) Regulations, 2002; Guidelines on HIV Testing issued by the Union Ministry of Health and Family Welfare, National Aids Control Organization (NACO), 2007; Charlesworth & Percy on Negligence, 14th Edition (2018) Sweet and Maxwell @ 6-25, page 400 – referred to.
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As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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