CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING OFFICER & ORS

Citation: 2023 INSC 857, [2023] 14 S.C.R. 601

Court: Supreme Court of India

Bench: S. RAVINDRA BHAT AND DIPANKAR DATTA, JJ.

Judgment text

SUPREME COURT OF INDIA CPL ASHISH KUMAR CHAUHAN (RETD. ) v. COMMANDING OFFICER & ORS. Civil Appeal No. 7175 of 2021 [2023] 14 S. C. R. 601 : 2023 INSC 857 CASE DETAILS CPL ASHISH KUMAR CHAUHAN (RETD. ) v. COMMANDING OFFICER & ORS. (Civil Appeal No. 7175 of 2021) SEPTEMBER 26, 2023 [S. RAVINDRA BHAT AND DIPANKAR DATTA, JJ. ] HEADNOTES Issue for consideration: The appellant was transfused with one blood unit in the year 2002 at 171 Military Hospital. In 2014, appellant's blood samples revealed that he was suff ering from HIV. The Complaint fi led by the appellant before the NCDRC seeking compensation was dismissed. Whether the dismissal of his complaint was justifi ed.

Consumer Protection - Medical Negligence - Jurisdiction - Whether the appellant's case is under the Consumer Protection Act, 1986 - What are alternative basis for exercising jurisdiction - Can the court consider questions of fact: 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 defi nition of "consumer" under the Act includes not only the person who hires the "services" for consideration but also the benefi ciary, for whose benefi t 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 benefi t of employees who would be treated as benefi ciaries within the meaning of that word used in the defi nition 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 601 602 SUPREME COURT REPORTS [2023] 14 S. C. R. 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 affi davit 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 fi ltered 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 CPL ASHISH KUMAR CHAUHAN (RETD. ) v. COMMANDING 603 OFFICER & ORS.

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 suff ered 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 refi nement, 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 Rs.

1,54,73,000/- (Loss of earnings,Rs. 86,73,000/- + Mental agony, Rs. 50,00,000/- + Future care, Rs. 18,00,000/-). [Paras 74, 81, 84, 89] 604 SUPREME COURT REPORTS [2023] 14 S. C. R. 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 aff ected 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 aff ected by HIV or AIDS; 5) The Central and every State Government shall formulate HIV and AIDS related information, education and communication programmes which are age- appropriate, 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 signifi cant risk of occupational exposure to HIV, for the purpose of ensuring safe working environment, shall (i) provide, in accordance with the guidelines, fi rstly, 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 CPL ASHISH KUMAR CHAUHAN (RETD. ) v. COMMANDING 605 OFFICER & ORS.

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 offi cer 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 eff ect 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 Offi cer 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 offi cer, in all the factories, industrial establishments, commercial establishments, shops, plantations, commercial offi ces, professional organizations, and all other bodies falling within the defi nition 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 606 SUPREME COURT REPORTS [2023] 14 S. C. R. 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. CPL ASHISH KUMAR CHAUHAN (RETD. ) v. COMMANDING 607 OFFICER & ORS. 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. OTHER CASE DETAILS INCLUDING IMPUGNED ORDER AND APPEARANCES CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7175 of 2021. From the Judgment and Order dated 27. 08. 2021 of the National Consumer Dispute Redressal Commission in Consumer Complaint No. 647 of 2017. Appearances: Ms. Meenakshi Arora, Sr. Adv. (Amicus Curiae), Ms. Vanshaja Shukla (Amicus Curiae), Adv.

for the Appellant. Vikramjeet Banerjee, ASG, Nachiketa Joshi, Rajan Kumar Chourasia, Udai Khanna, P V Yogeswaran, Vishnu Shankar Jain, Ms. Shruti Agarwal, Ms. Janhvi Prakash, Kartik Dey, Arvind Kumar Sharma, Advs. for the Respondents. Petitioner-in-person JUDGMENT / ORDER OF THE SUPREME COURT JUDGMENT S. RAVINDRA BHAT, J. 1. The present civil appeal challenges an order of the National Consumer Disputes Redressal Commission, New Delhi1 (hereafter, "Commission"). The application by - CPL Ashish Kumar Chauhan (hereafter, "appellant") for compensation was dismissed by the Commission.

The Commanding Offi cer, 171 Military Hospital is arrayed as the fi rst Respondent; the Medical Offi cer at the 171 Military Hospital ("171 MH") is the second respondent; the Principal Director, Directorate of Air Veterans is impleaded as the third respondent; the Commanding Offi cer of the South Western Air Command (Gandhinagar HQ) is arrayed as fourth respondent, and the Senior Medical 1 In Consumer Complaint No. 647 of 2017. 608 SUPREME COURT REPORTS [2023] 14 S. C. R. Offi cer at the said Military facility is impleaded as the fi fth respondent. The fi rst, second and fi fth respondents are, hereafter, referred to (unless the context otherwise requires) as "Indian Army"; and the third and fourth respondents, as "IAF". I. Relevant Facts 2. The aftermath of the attack on Indian Parliament, (i. e. , on 13 December 2001) was followed by heightened tensions at the Indo-Pak border.

There was troop mobilization at the border; what is termed as a prolonged "eyeball to eyeball" confrontation between Indian armed forces and Pakistani armed forces. During this deployment and engagement, known as "Operation Parakram", the appellant, who was a radar operative/ technician -with the IAF, was deployed at the border. He had enrolled in the IAF from 21. 05. 1996 in a permanent position and held a combatant rank. His medical category was A4 GI [which is Category A]. 3. In July 2002, as his services were needed, he was posted at 302 TRU (Transportable Radar Unit), Pathankot. He fell sick whilst on duty during the operation (Parakram) and complained of weakness, anorexia and passing high colored urine. He was, therefore, admitted to 171 MH, Samba. On 10. 07. 2002, whilst undergoing treatment at the aforementioned facility, Lt. Col Devika Bhat, posted as MO (Physician), advised him to undergo a blood transfusion.

One unit of blood was therefore, transfused to the appellant, for the management of severe symptomatic anemia. The said military hospital facility did not have a license for a blood bank but has been termed by the Indian Army as an "ad-hoc blood bank". Apparently neither any pathologist nor transfusion expert was posted at the facility as it was specifi cally opened up during Parakram. The appellant alleges that 171 MH did not possess any facility to check markers of blood, including HIV before transfusion and the blood was indented from another military hospital - 166 Military Hospital ("166 MH") as per the SoP2 on "Adhoc Blood Bank". The treatment papers of the appellant were entrusted to the Senior Medical Offi cer of the 302 TRU, Pathankot, for maintenance purposes. In August 2002, the appellant was again admitted to 171 MH; and this time, his hemoglobin level was found to have increased from 11. 5gm% to 13. 0gm%.

2 SoP for ad-hoc blood bank 171 Military Hospital CPL ASHISH KUMAR CHAUHAN (RETD. ) v. COMMANDING 609 OFFICER & ORS. [S. RAVINDRA BHAT, J. ] 4. In April 2014, the appellant again fell ill. This time, he was admitted to Station Medicare Centre, Head Quarter, South West Air Command (U), Gandhinagar. The test report dated 05. 03. 2014, reported "negative" for the HIV virus. While undergoing treatment at this facility, he suff ered some complications and was consequently, transferred to Military Hospital, Ahmedabad. On further deterioration of his health at the Ahmedabad center, he was further transferred to INHS Asvini, Mumbai, an Indian Naval establishment. While undergoing treatment, his blood samples were taken and on diagnosis, the Lab reports (dated 21. 05. 2014 and 23. 05. 2014), revealed that the appellant was suff ering from Human Immunodefi ciency Virus (hereafter, "HIV").

According to the appellant, these two lab reports meet the required parameters for a valid medical document, including mention of the lab reference number and name of the medical offi cer. The fi nding of the lab report returns as: "Positive for HIV - I Antibodies by NACO Strelegy". 5. The appellant endeavored to trace the source of the virus and realized that the transfusion of virus infected blood at 171 MH Samba in 2002 was the cause of his condition. After the detection of the HIV virus, the fi rst medical board was held on 11. 06. 2014 and as per the fi ndings of the Medical Board, the infection with HIV was made - "non-attributable to service". On being dissatisfi ed with the decision of the fi rst Medical Board, the appellant demanded a copy of the documents relating to his blood transfusion at 171 MH, Samba in July 2002; access was however refused by the respondents on account of their unavailability. 6.

In February of 2015, the appellant was hospitalized at a military facility in Ahmedabad owing to H1N1 (Swine) Infl uenza, Macrocytic Anaemia, Subhyalodid, and Haemorrhage along with Immune Surveillance. He requested information about his Personal Occurrence Report (POR) at 171 Military Hospital, Samba in 2002 which had to be kept by the Commanding Offi cer of the concerned unit. Pursuant to the request, the fi fth respondent, on 24. 09. 2014, wrote to the IAF record offi ce, in New Delhi and by letter dated 29. 09. 2014, the appellant's medical case sheet was provided to him. The case sheet shows that though on 10. 07. 2002, one unit of blood was transfused to the appellant, but whether Enzyme Linked Immunosorbent Assay (ELISA) test was conducted before infusing the 610 SUPREME COURT REPORTS [2023] 14 S. C. R. blood in the appellant's body was conspicuously absent from that medical case sheet. 7. Thus, Medical Boards were held on 12. 12. 2014 and 24. 06.

2015 and in terms of the medical board proceedings, the appellant's disability was attributable to service owing transfusion of one unit of blood at 171 Military Hospital on 10th July 2002. His disability and the disability qualifying elements for the purpose of disability pension were also assessed by the medical board @ 30% for two years. By letter dated 22. 03. 20163, PCDA (P) Allahabad endorsed the fi ndings of the Release Medical Board and agreed with the sanctioned disability pension. Based on the fi ndings of the medical boards, the appellant was sent to INHS, Asvini Mumbai, for his further medical classifi cation, and the specialist4 suggested that the appellant should be excused from physically exhaustive activities (including PT, Parade, and standing duties). 8. On 10. 09. 2015, the appellant requested for the release of certifi ed copies of his medical records.

They were not provided to him despite the fact that said records were essential for his treatment post discharge from the service. In fact, the appellant alleges that a condition was insisted on him to sign on the proceedings of a Release Medical Board which allegedly never took place. On 31. 05. 2016, the appellant was denied extension of services and was discharged from service, without the due proceedings of the Release Medical Board. At the time of release, the appellant was not provided with the Ex-Servicemen Contributory Health Scheme (hereafter, "ECHS") card within a reasonable time and an ECHS temporary card was issued only after an application5 was moved by him. Further, Rs. 15,000 were also deducted from the dues owed to him post-retirement in the absence of an ECHS card for undergoing medical treatment. 9. On 22. 09. 2016, the appellant wrote a letter to obtain his disability certifi cate. That was denied to him by a letter dated 14. 12.

20166, which stated that no such provision exists for issuance of printed disability certifi cate 3 Letter No RO/3305/3/Med. 4 Opinion of Specialist dated 16. 12. 2015 5 ApplicaƟ on dated 26. 04. 2016. 6 Vide Air HQ/99798/1/741570/DAV(DP/RMB). CPL ASHISH KUMAR CHAUHAN (RETD. ) v. COMMANDING 611 OFFICER & ORS. [S. RAVINDRA BHAT, J. ] in the format as desired by the appellant and subsequently on 29. 08. 2017, the appellant's disability pension was sanctioned in addition to his service pension. Pertinently, the letter dated 14. 12. 2016, also mentioned that: "3. Notwithstanding above it is certifi ed that as per records held with this offi ce, the disability "Immune Surveillance (HIV)" got affl icted due the blood transfusion that you received at 171 MH in July 2002. The disability is attributable to service. " 10.

Aggrieved by the denial of medical reports as to his blood transfusion, the appellant preferred an RTI application7 requesting for: (i) copies of his willingness certifi cate as to blood transfusion; (ii) information as to whether risks were disclosed to him about blood transfusion and whether appellant consented to those risks; and (iii) copies of blood test report to ascertain blood group and Rh factor test report of that one unit of blood. PIO RTI Cell8 informed the appellant that the information sought by him was exempted under Section 8(1) of the Right to Information Act, 2005 (hereafter, "RTI Act"). Dissatisfi ed with the information provided, he appealed to the First Appellate Authority. 11. The Appellate Authority by its order9 rejected the appeal and observed that best eff orts were made by the respondent authorities to trace the appellant's medical document and even admission and discharge documents were supplied to him whenever available with the respondent.

It was further observed by the Appellate Authority that 171 MH is not an authorized military hospital facility and it was established as an 'adhoc blood bank' with necessary blood being requisitioned from 166 MH. It was further observed by the Appellate Authority that old documents (including the appellant's medical records) have been destroyed as per the necessary policy and while disagreeing with the fi ndings of the Release Medical Board (where HIV was attributed to the service), observed that in absence of any causative factor between blood transfusion and acquiring HIV infection, HIV infection cannot be attributed to the service and thus found no negligence on behalf of the hospital authorities. Relevant fi ndings of the Appellate Authority are reproduced below: 7 Dated 05. 05. 2017. 8 Vide letter no 6004/A/GS (Edn). 9 Dated 12. 06. 2018. 612 SUPREME COURT REPORTS [2023] 14 S. C. R. "10.

It is informed that as per the PE of the hospital, 171 Military Hospital is not authorized any blood bank and hence no Pathologist is authorized or posted, at any time. However, an adhoc blood bank was established during 'Op Parakram' i. e. in 2002. Blood would be requisitioned from 166 MH and stored at 171 MH. " **** "16. It is pertinent to ask here as to how a blanket & an assured statement be made that a blood transfusion carried out in 2002 is the only causative factor for acquiring HIV infection in 2014 without ascertaining facts about the same. " 12. Meanwhile, proceedings of the Court of Inquiry (CoI) were held on 01. 07.

2018 to investigate circumstances under which the appellant was transfused blood at the 171 Military Hospital, Samba and the CoI concluded by its fi ndings that blood provided to the appellant was duly screened for the HIV and other markers in vogue at the relevant time and on examination of all the witnesses, no negligence or lapse can be attributed on the part of physician or the support staff at the said military facility. During the proceedings, Lt Col Devika Bhat, posted as MO (Physician) at the 171 MH, Samba deposed that the blood transfused to the appellant was duly screened as per the guidelines and all necessary precautions were taken to prevent HIV transmission.

It was further observed by the CoI that while the Release Medical Board has opined that infection can be attributed to service, but the specialist opinion before the Release Medical Board failed to mention essential details to establish a causative link between the blood transfusion in 2002 and the detection of infection in 2014. 13. The CoI further observed that: "6. It is further emphasized that Specialist Opinion given during RMB has not mentioned about history of any sexual exposure, administration of IV Fluids or injections or any prolonged Hospital treatment which are other modes of transmission by HIV in the intervening period between Jul 2002 to may 2014 (period between blood transfusion at 171 MH and detection as HIV positive). Hence categorically attributing HIV infection of the individual to blood transfusion given in Jul 2002 may not be in order. " CPL ASHISH KUMAR CHAUHAN (RETD. ) v. COMMANDING 613 OFFICER & ORS. [S. RAVINDRA BHAT, J. ] The CoI also observed that: "8. [..

] (d) All the available documents have been examined and it emerges that there were no lapses or negligence on the part of treating physician and supporting staff at 171 MH Samba and the blood bank staff of 166 MH Jammu as all policy/guidelines were followed for blood bank, screening of blood before Transfusion of one unit of blood to 741570B Ex Cpl Ashish Kumar Chauhan. " 14. The appellant fi led a complaint before the Commission seeking compensation of Rs. 95,03,00,000 (Rs. 95 crores 3 lakhs) plus litigation expenses of Rs. 10,000 per hearing and suitable pecuniary punishment to the delinquent offi cers. II. Commission's Findings 15. The Commission dismissed the appellant's complaint and observed that no expert opinion was adduced or proved before it for establishing medical negligence during the blood transfusion against the respondent/ opposite parties.

It was also observed that no reason existed for the opposite parties to deny sharing of the appellant's medical records, and in fact, the discharge certifi cate, when found was duly supplied to the appellant. 16. The Commission also relied on provisions of Indian Medical Council (Professional Conduct Etiquettes and Ethics) Regulations, 2002 (hereafter "IMC Professional Conduct Regulations")10 to observe that the hospital facility was not bound to preserve the appellant's medical records beyond the period of three years and thus there is no reason to believe that the authorities deliberately denied the appellant's medical records to him. The Commission also relied on the blood test report dated 05. 03. 2014 to hold that the appellant was not infected at the 171 Military Hospital, Samba, while denying the Medical Board's opinion dated 12. 12. 2014 and 24. 06. 2015 and a letter dated 14. 12.

2016 (as the same were not based on any evidence) and thus, no negligence was attributable to the respondents. Aggrieved by the fi ndings of the Commission, the appellant has preferred an appeal before this court. 10 Clause 1. 3. 1 of Indian Medical Council (Professional Conduct Etiquettes and Ethics) Regulations, 2002. 614 SUPREME COURT REPORTS [2023] 14 S. C. R. III. Proceedings in the present appeal 17. This court by an order dated 08. 04. 2022, considering the nature of the controversy involved in the impugned case, appointed Ms. Meenakshi Arora, learned senior counsel and Ms. Vanshaja Shukla, as amici curiae to appear on behalf of the appellant and assist the court. 18. By a letter order dated 25. 04. 2022, this court directed the respondents to submit the entire record pertaining to transfusion of blood on 10. 07. 2002 to the appellant. As a consequence, 171 MH and 166 MH again searched their records and by letter dated 14. 06. 2022 and 13. 06.

2022 (from 171 MH and 166 MH respectively), submitted that they were unable to detect the appellant's medical records as they were destroyed in compliance with the policy of destruction of old documents. IV. Submissions by the Appellant 19. The amici and the appellant argued that it is the onus of the respondents to establish that the two armed forces (Indian Army and IAF) were not negligent, because of the direct acts of their doctors and the hospital. Reference to a letter dated 12. 06. 2018 was made in which the Respondent No 1 admitted in writing that 171 MH was not authorized to operate any blood bank and therefore, no pathologist was authorized or appointed at the facility. The appellant also referred to an RTI reply11 stating that "there was no transfusion medicine expert (doctor) available and no blood grouping and cross-matching test report is available". 20.

The amici further argued that the respondents failed to provide any material evidence, such as the ELISA/HIV test and blood compatibility report of the blood unit that was transfused to the appellant in 2002, to demonstrate that they followed their own exhibited 'Transfusion Medicine Technical Manual and Standard Operating Procedures' that is to say that before any blood transfusion took place, it was compulsory to conduct an ELISA test of the blood unit to determine whether it was HIV infected or not, ensuring that it is safe for transfusion to HIV negative person. The appellant placed reliance on cases like Smt. Savita Garg vs. The Director, 11 Letter no. 4180/Adm. /RTI/2019, dated 3. 7. 2019. CPL ASHISH KUMAR CHAUHAN (RETD. ) v. COMMANDING 615 OFFICER & ORS. [S. RAVINDRA BHAT, J. ] National Heart Institute (hereafter, "Savita Garg")12; V. Kishan Rao v Nikhil Super Speciality Hospital & Another13; Nizam Institute of Medical Sciences v Prasanth S. Dhananka & Ors.

(hereafter, "Nizam Institute of Medical Sciences")14, related to medical negligence, to support his contention that in cases of medical negligence, the burden of proof lies with the respondents and not with the appellant. 21. The amici and the appellant submitted that the respondents failed to secure a written informed consent bearing his signature both before the Commission as well as this court. As a consequence, the HIV negative report dated 5. 3. 2014 cannot be accepted. It was also contended that the report presented by the respondents is fraudulent and baseless since it was produced by them after a signifi cant delay of more than seven years, which is contrary to Section 1. 3. 1 - "Maintenance of Medical Records" of the IMC Professional Conduct Regulations. 15 Additionally, the report lacks important details such as part-I, Lab Reference number, the name of the specifi c pathologist, and is mentioned as referred by "self".

To further counter the accusation that the appellant had concealed the HIV negative report dated 05. 03. 2014, he argued that the medical sheet and related documents were in the possession of the respondents. He was never given access to it, or a copy of it; hence, he could not have produced the same. 22. Reference was made to Chapter 16 of "The Guidelines for HIV Testing, March 2007", published by the National AIDS Control Organisation, Ministry of Health and Family Welfare, to highlight the importance of informed consent for HIV testing. The guideline states that any physician conducting an invasive procedure on a patient must obtain informed consent; in other words, the patient must be provided with adequate information about the necessity of blood transfusion, available alternatives, and the potential risks associated with both transfusion and non-transfusion options so as to make an informed decision. 12 [2004] SUPP. 5 S. C. R. 359. 13 [2010] 5 S. C. R. 1. 14 [2009] 6 S. C. C. 1.

15 Section 1. 3. 1 Maintenance of medical records: 1. 3. 1 Every physician shall maintain the medical records pertaining to his/ her indoor patients for a period of 3 years from the date of commencement of the treatment in a standard proforma laid down by the Medical Council of India [.. ] 616 SUPREME COURT REPORTS [2023] 14 S. C. R. 23. Diff erent medical opinions16, medical board proceedings17, and offi cial letters18 received by the appellant from respondents after his discharge from service, including the legal opinion of the command judge advocate, HQ SWAC19, having categorically admitted the connection between the appellant's disability contracted due to reasons attributable to service and the blood transfusion of 10. 07. 2002, were relied upon. The appellant also challenged the disputed medical board proceeding dated 11. 06.

2014, which stated that the condition was not attributed to military services, by placing reliance on policies of respondents20, the Drugs & Cosmetics Act, 1940 and rules thereunder including IMC Professional Conduct Regulations, and the guidelines for HIV testing along with 'Standards for Blood Banks & Blood Transfusion Services'. 24. It was further argued that since the respondents have explicitly admitted that the appellant contracted his disability due to the blood transfusion, there is no need for further deliberation on the matter, as per Section 58 of the Indian Evidence Act, 1872; an admitted fact need not be proven. 25. The appellant argued that the respondents claimed to have no records related to the appellant and the blood transfusion pertaining to the year 2002, stating that they were destroyed. However, they presented a receipt, issue, and expense voucher dated 12. 01.

2002 for two units of B-negative human blood, which was supplied by 166 Military Hospital (Blood bank) to 171 Military Hospital. The appellant questioned how the respondents were able to produce this document, which is available on record, after a gap of more than 20 years. The appellant also referred to Section 18B21 of the Drugs and Cosmetics Act, 1940, and the Drugs and 16 Dated 24. 5. 2014 by the Surg Capt. Vivek Hande of HIV Physician/expert, INHS Ashvini, Mumbai. 17 Dated 12. 12. 2014, 24. 6. 2015, 21. 12. 2015. 18 No. Air HQ/99798/1/741570/DAV(DP/RMB) dated 14. 12. 2016 and 29. 8. 2017. 19 Letter no. SWAC/S1276/1/AD, dated 24. 5. 2016. 20 IAP-4303 & GMO-2008. 21 18B. Maintenance of records and furnishing of information.

--Every person holding a licence under clause (c) of section 18 shall keep and maintain such records, registers and other documents as may be prescribed and shall furnish to any offi cer or authority exercising any power or discharging any function under this Act such information as is required by such offi cer or authority for carrying out the purposes of this Act. CPL ASHISH KUMAR CHAUHAN (RETD. ) v. COMMANDING 617 OFFICER & ORS. [S. RAVINDRA BHAT, J. ] Cosmetics Rules, 1945, which pertains to maintaining of the records and providing the information. According to this section, every person holding a license under clause (c) of Section 18 is obligated to keep and maintain prescribed records, registers, and other documents. 26. It was further argued that the CoI conducted by the respondents was with the participation of the Indian Army offi cers and witnesses, without involving or summoning the appellant.

It appeared to be a mere formality as no documents were presented before this court. It was argued that this entire procedure was not only violative of principles of natural justice, and fair play but a ruse to discount the medical certifi cates and conclusions recorded which pointed to negligence of the Indian Army. This suggests that the records produced by the respondents were added as an afterthought. The respondents' contradictory statements about not maintaining records beyond three years, while at the same time also producing documents that are 7 to 20 years old, further weaken their case. Further, these records cannot be taken on record because the affi davit is signed by Capt. Alokesh Roy, offi cer In-charge of the Legal cell, Army Hospital (R & R) Delhi Cantt, claiming to be fi led on behalf of the respondent.

The respondents have failed to produce the copy of the notice/summons served to the appellant under Section 135 of the Army Act, 1950 regarding the CoI, which alleged that the appellant was called for the inquiry but did not attend its proceedings. Furthermore, the respondents never challenged the Medical Board proceedings dated 12. 12. 2014, 24. 01. 2015 and 21. 12. 2015, or the certifi cates issued by it, before the appellant initiated legal proceedings against them. 27. The appellant further argued that the HIV expert's report cannot be considered as the said expert is a regular employee of the respondent's organization, and hence his opinion cannot be free from biases. He placed reliance on this court's decisions in Fakruddin versus Principal, Consolidation Training Institute & Ors. 22; State of Uttaranchal & Ors. Vs. Kharak Singh23, and A. K. Kraipak & Ors. Vs. UOI & Ors.

24Arguing further on biases, the appellant turned the Court's attention to the fact that one of the members of the Commission bench was a retired Defence Secretary. 22 [1995) SUPP. 1 S. C. R 389. 23 [2008] 12 S. C. R. 54. 24 [1970] 1 S. C. R. 457. 618 SUPREME COURT REPORTS [2023] 14 S. C. R. 28. It was further argued that due to him being HIV positive, the appellant was deemed unfi t for re-employment and extension of service. Consequently, he was discharged from permanent service in the Indian Air Force. In fact, he was later selected by the Food Corporation of India. But, due to his HIV positive status, the Food Corporation of India rejected the appellant on medical grounds. Additionally, his medical condition led to divorce and the loss of family support. 29. The appellant relied on Chapter 3 of the National Guidelines for HIV testing to assert that antibody detection tests are not eff ective during the window period when antibodies are not yet detectable.

Additionally, the appellant referred to Guidelines on HIV Testing (March 2007) published by the National AIDS Control Organisation (hereafter "NACO"), which states that the disease's rate of progression depends on viral characteristics and host factors, ranging from 1 year to more than 15-20 years. NACO has also certifi ed that around 5% of HIV-infected individuals, known as "long term non-progressors" (hereafter, "LTNPs"), do not experience disease progression for an extended period. It was urged that the appellant's case fell under such a category. To further substantiate this submission, the appellant cited a judgment from the Supreme Court of New Jersey in the case of State ex rel. J. G. , N. S. & J. T25. wherein, the court observed that a negative HIV test result for the accused does not necessarily mean they are not infected with HIV. It could be due to the "window period", during which HIV tests may provide inaccurate results. 30.

It was argued that respondents had, through various letters26 admitted that the appellant qualifi es as a consumer under Section 2 (l) (d) (ii) of the Consumer Protection Act, 1986, (hereafter "CPA 1986") as the appellant, being a permanent employee of the IAF, availed medical services from the respondents as defi ned under the same section. The appellant placed reliance on the judgments of this court, including M/S. Spring Meadows Hospital & Anr. versus Harjol Ahluwalia Through K. S. Ahluwalia & Anr. 25 Decided on September 25, 1997. 26 Vide Letter No. SWAC/ 3451 / 1103 / PIO, dated 20th Feb 2017; vide Letter No. SWAC / 3451 / 1103 / PIO, dated 14. 03. 2017; vide Letter No. Air HQ / 23401/2O4/ 4 / 11245 /E / PS, dated 26. 04. 2017; vide Letter No. DCA / Pen -III / Court Case /2018, Dated 07. 01. 2019. CPL ASHISH KUMAR CHAUHAN (RETD. ) v. COMMANDING 619 OFFICER & ORS. [S. RAVINDRA BHAT, J. ] (hereafter, "Spring Meadows")27; Kishore Lal vs.

Chairman, Employee State Insurance Corporation (hereafter, "Kishore Lal")28; Laxman Thamappa Kotgiri v G. M. , Central Railway (hereafter, Laxman Thamappa Kotgiri")29; and Savita Garg vs. The Director, National Heart Institute30, to further substantiate his submission. 31. The amici and the appellant urged the court that the facts show that there was negligence and reckless disregard of the ordinary care expected of the medical experts, when the blood transfusion took place. It was contended that the court should grant all the reliefs available in law, such as monetary compensation towards loss of income, till the date of normal superannuation, taking into account that he would have been in a position to retire as a Junior Commissioned Offi cer, at the age of at least 58 years. At the very least, his services as non-commissioned personnel would have been ordinarily extended for another seven years.

The amici submitted that the present condition of the appellant is fraught as his condition has worsened and he is almost in a state of dependency as he has to rely on the assistance of a support person, cannot move about freely and is frequently fatigued. It was further submitted that the transfusion, without seeking informed consent, without ensuring observance of minimum safeguards and later, stonewalling the appellant, denying access to his medical records, and even seeking to deny their liability, by holding a CoI, - the reason for whose setting up was only to discount previous medical certifi cation- and the insinuations aimed at the appellant, caused him immense mental agony, for which suitable and deterrent compensation is warranted.

It was also submitted that the attitude and behaviour of the respondents in providing treatment to the appellant, which he is entitled to in accordance with the applicable rules, as a person discharged on medical grounds, and certifi ed to a certain extent of disability, has eroded his confi dence. Therefore, the court should issue suitable directions for his continued medical treatment, in an alternative manner, or suitably compensate him. It was highlighted that the response and indiff erence of the respondents has caused intense 27 [1998] 2 S. C. R. 428. 28 [2007] 6 S. C. R. 139. 29 (2007) 4 SCC 596. 30 [2004] SUPP. 5 S. C. R. 359. 620 SUPREME COURT REPORTS [2023] 14 S. C. R. mental agony to the appellant, which should be separately compensated. The amici also highlighted that the appellant's eff ort to secure employment has turned to naught, because though he was almost selected for a post, the future employer, i. e.

, the Food Corporation of India (FCI), rejected his application, when it became aware that he was HIV positive. A response to the appellant's RTI query, given by the FCI on 17. 02. 2018 in this context was placed on the record. V. Submissions on Behalf of Respondents 32. Learned counsel appearing for the Indian Army and IAF, Additional Solicitor General - Mr. Vikramjit Banerjee (hereafter "ASG") submitted that the appellant failed to prove medical negligence attributable to the respondents and that no medical report submitted on record establishes negligence on their part. 33. It was submitted by the ASG that the appellant is not a 'consumer' in terms of Section 2(1)(d)31 of the CPA 1986, he was entitled to, and availed medical services from armed forces hospitals free of cost and the services provided by the armed forces hospital is not a service under the Section 2(1) (o)32 of the CPA 1986. Such services are provided without any consideration.

31 (d) "consumer" means any person who,-- (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any benefi ciary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the fi rst mentioned person [but does not include a person who avails of such services for any commercial purpose]; [Explanation.

--For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment. ] 32 (o) "service" means service of any description which is made available to potential [users and includes, but not limited to, the provision of] facilities in connection with banking, fi nancing insurance, transport, processing, supply of electrical or other CPL ASHISH KUMAR CHAUHAN (RETD. ) v. COMMANDING 621 OFFICER & ORS. [S. RAVINDRA BHAT, J. ] Reliance was placed on following observations of this court's judgment in Nivedita Singh v Dr Asha Bharti33: "6.

A reading of the above para shows that a medical offi cer who is employed in a hospital renders service on behalf of the hospital administration and if the service as rendered by the Hospital does not fall within the ambit of 2(1)(o) of the Act being free of charge, the same service cannot be treated as service Under Section 2(1)(o) for the reasons that it has been rendered by medical offi cer in the hospital who receives salary for the employment in the hospital. It was thus concluded that the services rendered by employee-medical offi cer to such a person would therefore continue to be service rendered free of charge and would be outside the purview of Section 2(1)(o) of the Act. " 34. The learned ASG relied on the judgment of Jacob Mathew v State of Punjab34 and Martin F D'Souza v Mohd Ishfaq (hereafter, "Martin F.

D'Souza")35 to contend that in cases of medical negligence, courts must refer the matter to a competent doctor or a specialized committee in the relevant fi eld and only on the recommendation of such expert giving prima facie fi nding of medical negligence that doctor should be summoned. And in the present case, the appellant has not produced any expert opinion to substantiate his claim of medical negligence. 35. Reliance was also placed on the medical report dated 05. 03. 2014, issued when the appellant was admitted to the hospital facility at MH Ahmedabad, owing to Pneumonia. This medical report stated that the appellant was detected HIV negative, which shows that the appellant was HIV negative for a period of 12 years (i. e. , from July 2002 to March 2014). 36.

It was further submitted that IMC Professional Conduct Regulations requires consent only for the purpose of surgical treatment, and blood transfusion not being a surgical treatment, consent of the appellant is not energy, board or lodging or both, [housing construction,] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service. " 33 2021 SCC OnLine SC 3165. 34 [2005] Supp 2 SCR 307; (2005) 6 SCC 1. 35 [2009] 3 SCR 273; (2009) 3 SCC 1. 622 SUPREME COURT REPORTS [2023] 14 S. C. R. mandatory and at no point of time treatment was forced upon the appellant. It was further argued that Medical Boards are not the primary source of evidence in relation to the detection of HIV infection disease, and the test report dated 05. 03. 2014 must be considered as primary evidence. 37.

Learned ASG further submitted that the appellant failed to show any connection between the transfusion of blood and HIV positive status of the appellant. It was argued that the fi ndings of the Medical Board as to the disability of the appellant being attributed to service was solely for the purpose of granting disability pension and the same fi ndings cannot be used to infer negligence on the part of the respondent authorities. Further, the CoI too, after examining all witnesses and their statements and evidence, observed that not only the documents pertaining to blood transfusion and screening of blood were not available with the 171 MH but also observed that blood was properly screened prior to being transfused to the appellant. 38. It was further argued that the appellant failed to show any causation between the blood transfusion and his eventually being infected with the virus. There was a 'novus actus interveniens' that led to the appellant being infected with the HIV virus.

To substantiate this, the ASG urged that even when the appellant was admitted to the hospital on 31. 04. 2002 (i. e. , before blood transfusion), he showed symptoms of 'macrocytic anaemia' and even in February 2014, when he was admitted to the Military Hospital, Ahmedabad, symptoms of 'macrocytic anemia' were present. Relying on research papers in the fi eld36, it was submitted that anemia is the most frequent and common abnormality associated with HIV, which the appellant had in 2002, even before he was admitted to the hospital for blood transfusion and thus, it cannot be ascertained with conviction that appellant acquired HIV due to blood transfusion and not from any other source. 39. It was further submitted that no adverse inference against the respondent can be drawn from the non-availability of the appellant's medical reports with the respondents as the same have been weeded out.

Additionally, 36 Including - "Haematological changes in HIV infection with correlation to CD4 cell count" published in Australasian Medical Journal and a Lancet Article titled "Prevalence of anemia among people living with HIV: A systematic review and meta analysis". CPL ASHISH KUMAR CHAUHAN (RETD. ) v. COMMANDING 623 OFFICER & ORS. [S. RAVINDRA BHAT, J. ] the respondents are not required to maintain the appellant's medical record beyond a period of three years as per IMC Professional Conduct Regulations and there is no obligation to preserve the said medical documents beyond this period specially when 171, Military Hospital itself is a temporary hospital. Regulation 1. 3 of the IMC Professional Conduct Regulationsreads as: "Section 1. 3 Maintenance of medical records: 1. 3.

1 Every physician shall maintain the medical records pertaining to his/her indoor patients for a period of 3 years from the date of commencement of the treatment in a standard proforma laid down by the Medical Council of India and attached as Appendix 3. " 40. Learned counsel also placed reliance on communication dated 24. 05. 201637, wherein legal opinion of the case was provided by Command Judge Advocate (CJA). The opinion states that the appellant is wrong in blaming the organization for his divorce as the Family Court passed the divorce decree with the mutual consent of both the parties under Section 13B of the Hindu Marriage Act, 1955 and the same cannot be attributed to the respondent authorities. 41. Learned ASG further contended that the consumer complaint fi led by the Complaint before the Commission is grossly time barred and he has failed to demonstrate any suffi cient cause for condoning the delay.

Impugning the bona-fi des of the appellant, it was argued that he had discovered HIV infection in the year 2014 itself but approached the Commission only in 2017 and the appellant had symptoms of immunodefi ciency during 2002 and 2014. Yet he has attempted to conceal those facts at earlier stages. It was further argued that it was not possible for the appellant to remain asymptomatic for a period of 12 years after being infused with the virus specially when an infection is transmitted through blood transfusion as in such cases, viral load is greater and disease manifests comparatively early. 42. It was submitted that HIV can be caused because of various reasons, such as unprotected sexual intercourse with an HIV infected person; blood transfusion; sharing of HIV infected needles; transfer of HIV virus by 37 Forwarding of personal application 741570-B CPL AK Chauhan ADSO in Letter no. SWAC/S1276/1/AD, dated 24. 5. 2016. 624 SUPREME COURT REPORTS [2023] 14 S. C. R.

infected mother to her baby before birth, or after birth, by breastfeeding. In the facts of this case, the appellant did not establish any defi nite causal relationship between infection in 2002 and his acquiring HIV positive status in 2014 as a direct and only result of his being admitted and given the blood transfusion in 171 MH. The records reveal that the appellant was referred to 171 MH in 2002 as he was affl icted with microcytic anemia; loss of appetite, discoloration of urine, 5 kg weight loss in 5 months, fever and dyspepsia. When admitted in February 2014, at MH Ahmedabad, the appellant was suff ering from conditions such as H1N1 virus (swine fl u); macrocytic anemia; subhyalodid hemorrhage. The eff ect of transfusion in 2002 led to considerable improvement in the appellant's overall medical condition.

It was submitted that during the CoI, the concerned pathologist of 166 MH at the relevant time, produced records showing that two units of B-negative blood were indented to 171 MH on 12. 01. 2002. No records showing blood units given to 171 MH for June- July 2002 were available. Therefore, at best, there was no evidence which could establish to any extent that HIV infected blood was transfused. In these circumstances, there is no question of negligence by the respondents or vicarious liability for their negligence of the IAF or the Indian Army. VI. ANALYSIS (i) Jurisdiction (a) Is appellant's case covered under CPA 1986: 43. The fi rst question that the court has to consider is whether the appellant's case is under the CPA 1986.

The respondents contend that the appellant cannot claim to be a consumer, and the medical facilities extended to him, through the IAF and army hospitals, do not fall within the ambit of the CPA 1986, because all armed force personnel are required, as part of their duties, to show fi tness, and are subjected to periodic mandatory medical tests. The terms and conditions of engagement of armed forces personnel, and the army/IAF ecosystem are geared to ensure the fi tness and sound medical shape of its personnel. Therefore, even the doctors and other personnel within the medical system are subjected to army/IAF discipline and rules and regulations. In these circumstances, Army hospitals and similar facilities cannot be considered as covered by CPA 1986. CPL ASHISH KUMAR CHAUHAN (RETD. ) v. COMMANDING 625 OFFICER & ORS. [S. RAVINDRA BHAT, J. ] 44.

It would be useful to extract the relevant regulation (applicable to Indian army personnel), which is contained in Regulation 173 of the Pension Regulations for the Army, 1973 (hereafter "Army Pension Regulations"): "173. Primary Conditions for the grant of Disability Pension Unless otherwise specifi cally provided a disability pension consisting of service element and disability element may be granted to an individual who is invalided out of service on account of a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20 per cent or over. " 45. Chapter III of the IAF Pension Regulations, 1961, applies to airmen, i. e. , non-commissioned personnel and offi cers, such as the appellant, which spells out its application by Rule 101. Rule 111 renders all service, rendered up to the date of discharge of the airman, eligible for counting of pensionary service. Rule 153 reads as follows: "153.

Unless otherwise specifi cally provided, a disability pension may be granted to an individual who is invalided from service on account of a disability which is attributable to or aggravated by air force service and is assessed at 20 per cent or over. The question whether a disability is attributable to or aggravated by air force service shall be determined under the regulations in Appendix II" Appendix II deals with the principles to be applied for deciding disability. 46. In Pani Ram vs. Union of India38, this court, while upsetting a decision of the Armed Forces Tribunal rejecting a claim for disability pension, for an army personnel, held, inter alia, on a reading of the Army Pension Regulations that: "18. The perusal thereof will reveal that an individual who is invalided out of service on account of disability, which is attributable or aggravated by Military Service in non-battle casualty and is assessed 20% or more, would be entitled to disability pension.

The Respondents are not in a position to point out any Rules or Regulations, which can 38 2021 (9) SCR 1024. 626 SUPREME COURT REPORTS [2023] 14 S. C. R. be said to be inconsistent with Regulation No. 292 or 173, neither has any other Regulation been pointed out, which deals with the terms and conditions of service of ETF. " Further, the court had remarked, poignantly that: "23. As held by this Court, a Right to Equality guaranteed Under Article 14 of the Constitution of India would also apply to a man who has no choice or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of Rules as part of the contract, however unfair, unreasonable and unconscionable a Clause in that contract or form or Rules may be. We fi nd that the said observations rightly apply to the facts of the present case.

Can it be said that the mighty Union of India and an ordinary soldier, who having fought for the country and retired from Regular Army, seeking re-employment in the Territorial Army, have an equal bargaining power. We are therefore of the considered view that the reliance placed on the said document would also be of no assistance to the case of the Respondents. " 47. Certain decisions of this court, in this regard, are illuminating. Savita Garg (Supra) dealt with this aspect, and referred to the previous ruling in Indian Medical Assn. v. V. P. Shantha (hereinafter, "V. P. Shantha")39: "This Court has dealt with all aspects of the medical profession from every angle and has come to the conclusion that the doctors or the institutes owe a duty to the patients and they cannot get away in case of lack of care to the patients.

Their Lordships have gone to the extent that even if the doctors are rendering services free of charge to the patients in government hospitals, the provisions of the Consumer Protection Act will apply since the expenses of running the said hospitals are met by appropriation from the Consolidated Fund which is raised from taxes paid by the taxpayers. Their Lordships have dealt with the defi nition of "service" given in Section 2(1)(o) of the Consumer Protection Act, 1986, and have observed as follows: 39 1995 Supp (5) SCR 110. CPL ASHISH KUMAR CHAUHAN (RETD. ) v. COMMANDING 627 OFFICER & ORS. [S. RAVINDRA BHAT, J. ] "The services rendered free of charge to patients by doctors/hospitals, whether non-government or government, who render free service to poor patients but charge fees for services rendered to other patients would, even though it is free, not be excluded from defi nition of service in Section 2(1)(o). The Act seeks to protect the interests of consumers as a class.

To hold otherwise would mean that the protection of the Act would be available to only those who can aff ord to pay and such protection would be denied to those who cannot so aff ord, though they are the people who need the protection more. It is diffi cult to conceive that the legislature intended to achieve such a result. Another consequence of adopting a construction, which would restrict the protection of the Act to persons who can aff ord to pay for the services availed by them and deny such protection to those who are not in a position to pay for such services, would be that the standard and quality of services rendered at an establishment would cease to be uniform. It would be of a higher standard and of better quality for persons who are in a position to pay for such service while the standard and quality of such service would be inferior for persons who cannot aff ord to pay for such service and who avail the service without payment.

Such a consequence would defeat the object of the Act. All persons who avail the services by doctors and hospitals who give free service to poor patients but charge fee for others, are required to be treated on the same footing irrespective of the fact that some of them pay for the service and others avail the same free of charge. Most of the doctors and hospitals work on commercial lines and the expenses incurred for providing services free of charge to patients who are not in a position to bear the charges are met out of the income earned by such doctors and hospitals from services rendered to paying patients. The government hospitals may not be commercial in that sense but on the overall consideration of the objectives and the scheme of the Act it would not be possible to treat the government hospitals diff erently.

In such a situation the persons belonging to 'poor class' who are provided services free of charge are the benefi ciaries of the service which is hired or availed of by the 'paying class'. Service rendered by the doctors and hospitals who render free service to poor patients and charge fees for others 628 SUPREME COURT REPORTS [2023] 14 S. C. R. irrespective of the fact that part of the service is rendered free of charge, would nevertheless fall within the ambit of the expression 'service' as defi ned in Section 2(1)(o) of the Act. " 48. Laxman Thamappa Kotgiri (supra)was a case where a railway employee was aggrieved by the negligent treatment of his wife, resulting in her death. His complaint was rejected, on the premise that the railway hospital where the treatment was given, was a part of his condition of service wherein he and his dependents were provided medical advice and treatment, free of charge. This court upset those fi ndings and held the complaint maintainable: "6.

There is no dispute that the hospital in question has been set up for the purpose of granting medical treatment to the railway employees and their dependants. Apart from the nominal charges which are taken from such an employee, this facility is part of the service conditions of the railway employees. V. P. Shantha case [(1995) 6 SCC 651] has made a distinction between non-governmental hospital/nursing home where no charge whatsoever was made from any person availing of the service and all patients are given free service [vide para 55(6) at p.

681] and services rendered at government hospital/health centre/ dispensary where no charge whatsoever is made from any person availing of the services and all patients are given free service [vide para 55(9)] on the one hand and service rendered to an employee and his family members by a medical practitioner or a hospital/nursing home which are given as part of the conditions of service to the employee and where the employer bears expenses of the medical treatment of the employee and his family members [para 55(12)] on the other. In the fi rst two circumstances, it would not (sic) be free service within the defi nition of Section 2(1)(o) of the Act. In the third circumstance it would (sic not) be. 7.

Since it is not in dispute that the medical treatment in the said hospital is given to employees like the appellant and his family members as part of the conditions of service of the appellant and that the hospital is run and subsidised by the appellant's employer, namely, the Union of India, the appellant's case would fall within the CPL ASHISH KUMAR CHAUHAN (RETD. ) v. COMMANDING 629 OFFICER & ORS. [S. RAVINDRA BHAT, J. ] parameters laid down in para 55(12) of the judgment in V. P. Shantha case [(1995) 6 SCC 651] and not within the parameters of either para 55(6) or para 55(9) of the said case. 8. It is true that the decision in State of Orissa v. Divisional Manager, LIC [(1996) 8 SCC 655] relied upon by the learned counsel for the respondents appears to hold to the contrary. However, since the decision is that of a smaller Bench and the decision in V. P.

Shantha [(1995) 6 SCC 651] case was rendered by a larger Bench, we are of the opinion that it is open to this Court to follow the larger Bench which we will accordingly do. " Even in the case of employees who had contributed in part, the other contributions being from employers, under the Employees State Insurance Corporation scheme, this court had held that the services rendered by ESI hospitals were not gratuitous and that the ESI doctors fell within the ambit of the CPA 1986, in Kishore Lal (supra): "13. On a plain reading of the aforesaid provisions of the ESI Act, it is apparent that the Corporation is required to maintain and establish the hospitals and dispensaries and to provide medical and surgical services.

Service rendered in the hospital to the insured person or his family members for medical treatment is not free, in the sense that the expense incurred for the service rendered in the hospital would be borne from the contributions made to the insurance scheme by the employer and the employee and, therefore, the principle enunciated in Conclusion (11) in para 55 in Indian Medical Assn. [(1995) 6 SCC 651] will squarely apply to the facts of the present case, where the appellant has availed the services under the insurance policy which is compulsory under the statute. Wherever the charges for medical treatment are borne under the insurance policy, it would be a service rendered within the ambit of Section 2(1)(o) of the Consumer Protection Act. It cannot be said to be a free service rendered by the ESI hospital/dispensary. 14. The service rendered by the medical practitioners of hospitals/ nursing homes run by ESI Corporation cannot be regarded as a service rendered free of charge.

The person availing of such service under an insurance scheme of medical care, whereunder the charges for 630 SUPREME COURT REPORTS [2023] 14 S. C. R. consultation, diagnosis and medical treatment are borne by the insurer, such service would fall within the ambit of "service" as defi ned in Section 2(1)(o) of the Consumer Protection Act. We are of the opinion that the service provided by the ESI hospital/dispensary falls within the ambit of "service" as defi ned in Section 2(1)(o) of the Consumer Protection Act. ESI scheme is an insurance scheme and it contributes for the service rendered by the ESI hospitals/dispensaries, of medical care in its hospitals/dispensaries, and as such service given in the ESI hospitals/dispensaries to a member of the Scheme or his family cannot be treated as gratuitous. " 49. Section 1 (4) of CPA 1986, (which was in force when the appellant preferred his complaint) reads as follows: "1.

Short title, extent, commencement and applications: (4) Save as otherwise expressly provided by the Central Government by notifi cations, this Act shall apply to all goods and services. " 50. Earlier, keeping in line with the reasoning that furthered the objectives of the CPA 1986, spelt out in V. P. Shantha, this court had rejected, in Regional Provident Fund Commissioner v Shiv Kumar Joshi40: "We cannot accept the argument that the Regional Provident Fund Commissioner, being Central Government, cannot be held to be rendering "service" within the meaning and scheme of the Act. The Regional Provident Fund Commissioner, under the Act and the Scheme discharges statutory functions for running the Scheme. It has not, in any way, been delegated with the sovereign powers of the State so as to hold it as a Central Government, being not the authority rendering the "service" under the Act. The Commissioner is a separate and distinct entity.

It cannot legally claim that the facilities provided by the "Scheme" were not "service" or that the benefi ts under the Scheme being provided were free of charge. The defi nition of "consumer" under the Act includes not only the person who hires the "services" for consideration but also the benefi ciary, for whose benefi t such services are hired. Even if it is held that administrative charges are paid by 40 1999 (5) Suppl. SCR 294. CPL ASHISH KUMAR CHAUHAN (RETD. ) v. COMMANDING 631 OFFICER & ORS. [S. RAVINDRA BHAT, J. ] 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 benefi t of employees who would be treated as benefi ciaries within the meaning of that word used in the defi nition of "consumer". 51.

In Haryana Urban Development Authority v Vidya Chetal41, this court, speaking through a three-judge bench, held that: ".. if the statutory authority, other than the core sovereign duties, is providing service, which is encompassed under the Act, then, unless any statute exempts, or provides for immunity, for defi ciency in service, or specifi cally provides for an alternative forum, the consumer forums would continue to have the jurisdiction to deal with the same. We need to caution against over-inclusivity and the tribunals need to satisfy the ingredients under Consumer Protection Laws, before exercising the jurisdiction. " 52.

In the latest decision, Joint Labour Commissioner v Kesar Lal42, this court, dealt with the issue of whether a construction worker registered under the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 and a benefi ciary of the scheme made under the rules framed under the enactment, is a 'consumer' within the meaning of Section 2(d) of the CPA 1986. The court rejected the statutory authority's appeal, after reviewing a host of precedents: "14. [.. ] Public authorities such as the appellants who have been constituted under an enactment of Parliament are entrusted with a solemn duty of providing welfare services to registered workers. The workers who are registered with the Board make contributions on the basis of which they are entitled to avail of the services provided in terms of the schemes notifi ed by the Board.

Public accountability is a signifi cant consideration which underlies the provisions of the Consumer Protection Act 1986. The evolution of jurisprudence in 41 2019 (12) SCR 516. 42 2020 (5) SCR 176. relation to the enactment refl ects the need to ensure a sense of public accountability by allowing consumers a redressal in the context of the discharge of non-sovereign functions which are not rendered free of charge. This test is duly met in the present case. " (b) Alternative basis for exercising jurisdiction: 53. There are several precedents of this court, which justify the exercise of jurisdiction under Article 32 of the Constitution.

The most celebrated decision is that of Nilabati Behara v State of Orissa43, where the jurisdiction of the court was highlighted in the following terms: "'a claim in public law for compensation' for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is 'distinct from, and in addition to, the remedy in private law for damages for the tort' resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy.

It is this principle which justifi es award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution. " 54. This court declared the importance of reaching out to injustice and using its powers, including under Article 142 of the Constitution, in the following terms, in Delhi Development Authority v. Skipper Construction Co. (P) Ltd44: 43 1993 (2) SCC 746. 44 1996 (2) Suppl. SCR 295. CPL ASHISH KUMAR CHAUHAN (RETD. ) v. COMMANDING 633 OFFICER & ORS. [S. RAVINDRA BHAT, J. ] "It is conceived to meet situations which cannot be eff ectively and appropriately tackled by the existing provisions of law.

As a matter of fact, we think it advisable to leave this power undefi ned and uncatalogued so that it remains elastic enough to be moulded to suit the given situation. The very fact that this power is conferred only upon this Court, and on no one else, is itself an assurance that it will be used with due restraint and circumspection, keeping in view the ultimate object of doing complete justice between the parties. " Earlier, in Anadi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V. R. Rudani45, this Court examined the development of the law of mandamus and held as under: "[... ] mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor de Smith states: 'To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be suffi cient for the duty to have been imposed by charter, common law, custom or even contract.

' (Judicial Review of Administrative Action, 4th Edn. , p. 540). We share this view. The judicial control over the fast expanding maze of bodies aff ecting the rights of the people should not be put into watertight compartment. It should remain fl exible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available 'to reach injustice wherever it is found'. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition. " This court, very aptly expressed, in the larger Bench decision, reported as P. S. R. Sadhanantham v.

Arunachalam46, the jurisdiction of the court, to entertain a criminal appeal by the informant, where the accused was acquitted, and no appeal had been entertained by the state (without any statutory basis or locus for such complainant/petitioner) alluding to considerations of justice: 45 1989 (2) SCR 697. 46 1980 (2) SCR 873. 634 SUPREME COURT REPORTS [2023] 14 S. C. R. "3. The jural reach and plural range of that judicial process to remove injustice in a given society is a sure index of the versatile genius of law-inaction as a delivery system of social justice. By this standard, our constitutional order vests in the summit Court of jurisdiction to do justice, at once omnipresent and omnipotent but controlled and guided by that refi ned yet fl exible censor called judicial discretion. This nidus of power and process, which masterminds the broad observance throughout the Republic of justice according to law, is Article 136. " 55.

This court is conscious that if there are any statutory conditions or limitations, its exercise of Article 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. (c) Can the court consider questions of fact: 56. This aspect, i. e. , the court's ability and jurisdiction to appreciate facts, really is uncontestable; even in writ proceedings, the so-called "hands off " bogey of "disputed questions of fact" which ordinarily constrain the courts, under Articles 32 and 226 from exercising jurisdiction, are to be seen in the context of the facts of each case. No doubt, usually the courts would not primarily exercise jurisdiction to enter into the arena of disputed facts.

Yet, on occasions, the court has underlined that such an approach is dictated by considerations of convenience, rather than a rigid rule calling for universal application. Therefore, in Gunwant Kaur v Municipal Committee Bhatinda (hereafter, "Gunwant Kaur")47, this court held: "The High Court has jurisdiction to determine questions of fact, even if they are in dispute and the present, in our judgment, is a case in which in the interests of both the parties the High Court should have entertained the petition and called for an affi davit-in-reply from the respondents, and should have proceeded to try the petition instead of relegating the appellants to a separate suit. " 47 1969 (3) SCC 769. CPL ASHISH KUMAR CHAUHAN (RETD. ) v. COMMANDING 635 OFFICER & ORS. [S. RAVINDRA BHAT,