2023INSC857 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). 7175 OF 2021

CPL ASHISH KUMAR CHAUHAN (RETD.) …APPELLANT(S)

VERSUS

COMMANDING OFFICER & ORS. …RESPONDENT(S)

J U D G M E N T

S. RAVINDRA BHAT, J.

1. The present civil appeal challenges an order of the National Consumer

Disputes Redressal Commission, New Delhi

1

(hereafter, “Commission”). The

application by – CPL Ashish Kumar Chauhan (hereafter, “appellant”) for

compensation was dismissed by the Commission. The Commanding Officer, 171

Military Hospital is arrayed as the first Respondent; the Medical Officer 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 Officer of the South Western Air Command (Gandhinagar HQ) is

arrayed as fourth respondent, and the Senior Medical Officer at the said Military

facility is impleaded as the fifth respondent. The first, second and fifth

1

In Consumer Complaint No. 647 of 2017.

2

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 specifically 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 SoP

2

on “Adhoc Blood Bank”. The

2

SoP for ad-hoc blood bank 171 Military Hospital

3

treatment papers of the appellant were entrusted to the Senior Medical Officer 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%.

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 suffered 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 suffering from

Human Immunodeficiency 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 officer.

The finding 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 first medical board was

held on 11.06.2014 and as per the findings of the Medical Board, the infection

with HIV was made – “non-attributable to service”. On being dissatisfied with

the decision of the first 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) Influenza, Macrocytic Anaemia,

4

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 Officer of the

concerned unit. Pursuant to the request, the fifth respondent, on 24.09.2014, wrote

to the IAF record office, 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 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 22.03.2016

3

, PCDA (P) Allahabad endorsed the findings of the

Release Medical Board and agreed with the sanctioned disability pension. Based

on the findings of the medical boards, the appellant was sent to INHS, Asvini

Mumbai, for his further medical classification, and the specialist

4

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 certified 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

3

Letter No RO/3305/3/Med.

4

Opinion of Specialist dated 16.12.2015

5

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 application

5

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

certificate. That was denied to him by a letter dated 14.12.2016

6

, which stated

that no such provision exists for issuance of printed disability certificate 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 certified that as per records held

with this office, the disability “Immune Surveillance (HIV)” got

afflicted 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 application

7

requesting for: (i) copies of his

willingness certificate 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 Cell

8

informed the

appellant that the information sought by him was exempted under Section 8(1) of

5

Application dated 26.04.2016.

6

Vide Air HQ/99798/1/741570/DAV(DP/RMB).

7

Dated 05.05.2017.

8

Vide letter no 6004/A/GS (Edn).

6

the Right to Information Act, 2005 (hereafter, “RTI Act”). Dissatisfied with the

information provided, he appealed to the First Appellate Authority.

11. The Appellate Authority by its order

9

rejected the appeal and observed that

best efforts 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 findings 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 findings of the

Appellate Authority are reproduced below:

“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 findings

9

Dated 12.06.2018.

7

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.”

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 filed a complaint before the Commission seeking

compensation of ₹ 95,03,00,000 (₹95 crores 3 lakhs) plus litigation expenses of

₹ 10,000 per hearing and suitable pecuniary punishment to the delinquent

officers.

8

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 certificate, 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 findings of the Commission, the appellant has

preferred an appeal before this court.

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

10

Clause 1.3.1 of Indian Medical Council (Professional Conduct Etiquettes and Ethics) Regulations, 2002.

9

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 reply

11

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, National Heart Institute (hereafter, “Savita

Garg”)

12

; V. Kishan Rao v Nikhil Super Speciality Hospital & Another

13

; Nizam

Institute of Medical Sciences v Prasanth S. Dhananka & Ors. (hereafter, “Nizam

11

Letter no. 4180/Adm./RTI/2019, dated 3.7.2019.

12

[2004] SUPP. 5 S.C.R. 359.

13

[2010] 5 S.C.R. 1.

10

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

significant 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 specific 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

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 [..]

11

transfusion, available alternatives, and the potential risks associated with both

transfusion and non-transfusion options so as to make an informed decision.

23. Different medical opinions

16

, medical board proceedings

17

, and official

letters

18

received by the appellant from respondents after his discharge from

service, including the legal opinion of the command judge advocate, HQ

SWAC

19

, 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 respondents

20

, 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

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.

12

appellant also referred to Section 18B

21

of the Drugs and Cosmetics Act, 1940,

and the Drugs and 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 officers 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 certificates 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 affidavit is signed by Capt. Alokesh

Roy, officer In-charge of the Legal cell, Army Hospital (R & R) Delhi Cantt,

claiming to be filed 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 certificates issued by it, before the appellant

initiated legal proceedings against them.

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 officer or authority exercising any power or discharging any function under this Act such

information as is required by such officer or authority for carrying out the purposes of this Act.

13

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 Singh

23

, and

A. K. Kraipak & Ors. Vs. UOI & Ors.

24

Arguing 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.

28. It was further argued that due to him being HIV positive, the appellant was

deemed unfit 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 effective 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 certified 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

22

[1995) SUPP. 1 S.C.R 389.

23

[2008] 12 S.C.R. 54.

24

[1970] 1 S.C.R. 457.

14

Jersey in the case of State ex rel. J. G., N. S. & J. T

25

. 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 letters

26

admitted that

the appellant qualifies 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 defined

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. (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

Institute

30

, 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 Officer,

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

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.

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.

15

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 certification- 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 certified to a certain extent of disability, has eroded his

confidence. 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 indifference of the respondents has caused

intense mental agony to the appellant, which should be separately compensated.

The amici also highlighted that the appellant’s effort 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.

16

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. Reliance was placed on

following observations of this court’s judgment in Nivedita Singh v Dr Asha

Bharti

33

:

“6. A reading of the above para shows that a medical officer 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 officer in the

hospital who receives salary for the employment in the hospital. It

was thus concluded that the services rendered by employee-medical

officer 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

Punjab

34

and Martin F D’Souza v Mohd Ishfaq (hereafter, “Martin F.

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 beneficiary 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

first 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, financing insurance, transport, processing,

supply of electrical or other 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.

17

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 field and

only on the recommendation of such expert giving prima facie finding 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 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 findings 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 findings 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

35

[2009] 3 SCR 273; (2009) 3 SCC 1.

18

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 field

36

, 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, 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 Regulations reads 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

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”.

19

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

24.05.2016

37

, 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 filed by the

Complaint before the Commission is grossly time barred and he has failed to

demonstrate any sufficient cause for condoning the delay. Impugning the bona-

fides 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 immunodeficiency 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 infected mother to her

baby before birth, or after birth, by breastfeeding. In the facts of this case, the

appellant did not establish any definite 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

37

Forwarding of personal application 741570-B CPL AK Chauhan ADSO in Letter no. SWAC/S1276/1/AD,

dated 24.5.2016.

20

that the appellant was referred to 171 MH in 2002 as he was afflicted 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 suffering from conditions such as H1N1 virus

(swine flu); macrocytic anemia; subhyalodid hemorrhage. The effect 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 first 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 fitness, 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 fitness and sound medical shape of its personnel. Therefore, even

the doctors and other personnel within the medical system are subjected to

21

army/IAF discipline and rules and regulations. In these circumstances, Army

hospitals and similar facilities cannot be considered as covered by CPA 1986.

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 specifically 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 officers, 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 specifically 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 India

38

, 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

38

2021 (9) SCR 1024.

22

Rules or Regulations, which can 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 find 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 definition of “service” given in

Section 2(1)(o) of the Consumer Protection Act, 1986, and have

observed as follows:

“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 definition 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 afford to pay and such protection would be denied to

39

1995 Supp (5) SCR 110.

23

those who cannot so afford, though they are the people who need

the protection more. It is difficult 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 afford 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 afford 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 differently. In such a situation the persons

belonging to ‘poor class’ who are provided services free of charge

are the beneficiaries 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

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 defined 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 findings 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-

24

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

first two circumstances, it would not (sic) be free service within the

definition 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 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

25

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 consultation, diagnosis and medical

treatment are borne by the insurer, such service would fall within

the ambit of “service” as defined 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

defined 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 notifications, 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 Joshi

40

:

“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

40

1999 (5) Suppl. SCR 294.

26

benefits under the Scheme being provided were free of charge. 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”.

51. In Haryana Urban Development Authority v Vidya Chetal

41

, 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 deficiency in

service, or specifically 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 Lal

42

, 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 beneficiary 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 notified by the Board. Public accountability

is a significant consideration which underlies the provisions of the

Consumer Protection Act 1986. The evolution of jurisprudence in

relation to the enactment reflects the need to ensure a sense of public

accountability by allowing consumers a redressal in the context of

41

2019 (12) SCR 516.

42

2020 (5) SCR 176.

27

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 Orissa

43

, 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 justifies 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) Ltd

44

:

“It is conceived to meet situations which cannot be effectively and

appropriately tackled by the existing provisions of law. As a matter

of fact, we think it advisable to leave this power undefined 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.”

43

1993 (2) SCC 746.

44

1996 (2) Suppl. SCR 295.

28

Earlier, in Anadi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna

Jayanti Mahotsav Smarak Trust v. V.R. Rudani

45

, 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 sufficient for the duty to have

been imposed by charter, common law, custom or even contract.’

(Judicial Review of Administrative Action, 4

th

Edn., p. 540). We

share this view. The judicial control over the fast expanding maze

of bodies affecting the rights of the people should not be put into

watertight compartment. It should remain flexible 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. Arunachalam

46

, 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:

“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 refined yet flexible censor called

judicial discretion. This nidus of power and process, which master-

minds 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

45

1989 (2) SCR 697.

46

1980 (2) SCR 873.

29

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 affidavit-in-

reply from the respondents, and should have proceeded to try the

petition instead of relegating the appellants to a separate suit.”

57. This court applied the ratio in Gunwant Kaur, in ABL International Ltd. &

Anr. V Export Credit Guarantee Corporation of India Ltd. & Ors.

48

:

“19. Therefore, it is clear from the above enunciation of law that

merely because one of the parties to the litigation raises a dispute

in regard to the facts of the case, the court entertaining such petition

under Article 226 of the Constitution is not always bound to relegate

the parties to a suit. In the above case of Gunwant Kaur [(1969) 3

SCC 769] this Court even went to the extent of holding that in a writ

petition, if the facts require, even oral evidence can be taken. This

clearly shows that in an appropriate case, the writ court has the

jurisdiction to entertain a writ petition involving disputed questions

of fact and there is no absolute bar for entertaining a writ petition

47

1969 (3) SCC 769.

48

(2004) 3 SCC 553.

30

even if the same arises out of a contractual obligation and/or

involves some disputed questions of fact”

The ratio of these decisions was also followed in Unitech v Telangana

State Industrial and Infrastructural Development Corporation

49

.

58. In the light of these decisions, this court holds that 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 under Articles 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.

(ii) Facts as appearing from the record

59. The blood transfusion in the present case, took place on 10.07.2002. The

appellant was admitted to 171 MH on medical advice, in the third week of June

2002; after his transfusion, his overall condition improved; he was admitted as a

case of anorexia with a low Hb count of Hb 6.3 % g; which improved on the date

of his discharge (31-07-2002); he was found fit for discharge. When he felt

discomfort, he was admitted to a Military Hospital Ahmedabad; the blood test did

not indicate abnormality. Early, in the year 2014, he was admitted to the Military

Hospital, Ahmedabad, on 14.03.2014 and diagnosed with “Acute

Gastroenteritis” and “Sceptic shock”. The ultrasound report indicated “Hepatic

disease”. The blood report did not indicate any abnormality, other than an

unusual hemoglobin level (9.3g%). He was later required to report to INHS

Ashvini, and declared fit for travel in the entitled class, on diagnosis of “Sepsis

Secondary to Pneumonia” and “Azotemia” by medical advice issued by Military

49

2021 (1) SCR 1064.

31

Hospital Ahmedabad, on 19.05.2014. He was admitted to the naval ship INHS

Ashvini, when on 21.05.2014, he was detected for the first time, to be infected

with Positive HIV-1 antibodies, as a result of the ELISA test. He was prescribed

medication; he started taking treatment. The medical board proceedings dated

11.06.2014 detected disability; however, it stated that the “disability is not

attributable to service”. The next medical board proceeding certificate dated

12.12.2014 described the appellant as suffering from a disability which was

described as having been caused by “one unit of blood transfusion on 10.7.2002

in 171 MH.” Against the column whether the disability was attributable to

service, the certificate stated that “yes. One unit of blood transfusion on

10.7.2002 in 171 MH”. By the medical board proceedings dated 24.06.2015, the

cause of the appellant’s condition was described as (Col. 17) which was caused

by “one unit of blood-transfusion on 10 Jul 2002 in 171 MH”. The opinion of the

Surgeon Commander dated 16.12.2015 was that the petitioner was a “39 years

old serving air warrior is an old case of above-mentioned disability in LMC A4G4

(P) w.e.f 24 Jun 15 and due on 29 May 15. Individual reported. To SMC for 06

monthly review at INHS Asvini Release medical board. Individual was admitted

and transferred to INHS Asvini for the opinion of Gastroenterologist. He was

opined and recommended to be place in LMC P3 (p). Now individual reported

back to SMC for holding Release medical board”. Based on this, and the medical

record, the opinion of the board dated 21.12.2015 was that “Disability developed

due to one unit of blood transfusion on 10 Jul 2002, 171 MH. Hence consider

Attributable”. The letter (dated 21.12.2015) indicated that the appellant was to be

discharged on 31.05.2016. This assessment was accepted by the IAF, which

approved his medical fitness category and also rated his disability percentage on

22 January 2016 (by Group Capt. N.T. Manikantan), the approving authority. The

sanction of the disability element of the pension letter, dated 29.08.2017

(EX/741570 CPL Ashish Kumar Chauhan) issued by Air Headquarters described

32

the disability element sanctioned by the discharge letter, based on the

attributability found by the previous boards.

60. The learned ASG sought to attribute some sympathy, as the basis for

maintaining that the disability was attributable to service. However, the conduct

of the respondents points to entirely different facts. Initially, the respondents’

endeavor was to deny access to relevant information altogether, to the appellant.

His repeated RTI queries were turned down; for quite some time, he was also

denied access to his medical records. The IAF does not appear to have

communicated the discharge order, separately to him. No doubt, he refused to

sign the medical board proceedings; however, there is nothing forthcoming on

the record, to show that the IAF delivered the discharge order, on any particular

date, or communicated it to him. The affidavits of IAF also do not disclose that

there was ever any such communication.

61. In this background, it is significant to notice some facts and developments.

The notice of the appellant’s complaint was issued by the Commission/NCDRC

on 20.06.2017. The documents placed on the record, demonstrate and establish

that the CoI was constituted in response and an answer to the appellant’s

complaint. This is clear from the letter (No. B/76779/AK Chauhan/DGMS-

5B/GC-75) dated 04.05.2018 written by the Directorate General Medical Service,

(Army Adjutant Branch) to the HQ Western Command (Medical). After

instructing the relevant officials to trace the documents necessary to prepare the

counter affidavit, to the appellant’s complaint, it was suggested that:

“In view of the above, it is requested to order a C of I under the

aegis of your HQ for the following:

(a) to bring out the detailed facts pertaining to blood transfusion

done at 171 MH in 2002

(b) To investigate and bring out the authority which provided the

unit of blood and whether the same was duly screened as per the

policy/guidelines in vogue at that time.

33

(c) to bring out all supporting documents pertaining to blood

demand, blood transfusion and screening of blood along with

SOP/guidelines in vogue at that time.

(d) to investigate into the matter and pin point the lapses or

negligence if any and the individuals responsible thereto.”

62. It was in these circumstances, that the CoI was constituted. It is an

undisputed fact that though the appellant was the subject matter of that

proceeding, none of the respondents cared to involve him or inform him about it.

The proceedings scrupulously excluded him, despite the real likelihood of an

adverse consequence as the likely outcome. What is clearly discernable from the

proceedings in the CoI therefore, is that:

(a) Many of the documents, pertaining to appellant’s treatment were

denied, and repeatedly the respondents denied access to him. However,

many documents emerged- selectively, including the admission and

discharge slips signed by the treating doctor (Lt. Col. Devika Bhat).

(b) The documents which respondents stated were missing, somehow were

traced and produced during the CoI. These included extracts of

registers, containing details of records destroyed; selective production

makes the inquiry and its conclusions suspect to say the least.

(c) After categorically denying the existence of any records, somehow the

respondents were able to retrieve them. These included a register

containing details of the transfer of blood units from 166 MH to 171

MH.

(d) The deposition of Col. Nijhawan admitted that the responsibility of

testing/screening blood for markers was that of 166 MH. He also

admitted that there was no document to prove that the blood had been

tested for markers. (Reply to Question 9

50

). However, Lt. Col Devika

50

Col. Nijhawan was asked – “Can you produce Case Sheet With document stating that blood has been duly

screened for markers as per policy including HIV?” and it was replied that “No records are available”.

34

Bhat asserted that the blood was “duly screened as per guidelines then

in vogue: (Reply to Question No. 4

51

).

(e) The deposition of Lt. Col. Jyoti Borpujari states that 171 MH was

transferred one unit of B Negative blood on 12.01.2002; she further

deposed that there was no other record of transfer of blood to 171 MH

later, or during July 2002. She mentioned the relevant markers to test

blood. However, she nowhere stated that such procedures were in fact

used to test the blood actually transferred to 171 MH.

63. The final opinion of the CoI, based on the (allegedly scanty) documentary

evidence presented to it, and the testimonies of Col. Sanjay Nijhawan, Lt. Col

Devika Bhat, Lt. Col. Jyoti Borpurari (of 166 MH) is summarized as follows, in

that document:

“As per the statements of Col. Sanjay Nijhawan, (171 MH) Lt. Col

Devika Bhat, and Lt. Col. Jyoti Borpujari OIC Blood Bank 166 MH

the following facts emerge:

(a) One unit of blood transfusion was given to 741 41570 B Ex-Cpl

Ashish Kumar Chauhan, at 171 MH (Samba) in July 2002 for severe

Macrocytic aneamia along with conservative treatment.

(b) No records are available at 171 MH pertaining to screening of

blood for HIV, Blood demand and Blood transfusion during the

period Jun-July 2002.

(c) No records are available at 166 MH regarding issue of blood during

the period Jun-July 2002.

(d) An SOP for ad-hoc Blood Bank was promulgated at 171 MH

(Samba) for Transfusion of blood during the ‘OP PARAKRAM’ as

171 MH was not authorised Blood bank /Pathologist during that

period. As per SOP the Blood was screened tor HIV infection at 166

MH and then issued to 171 MH Samba. 171 MH only stored the

blood being issued for Transfusion.

(e) 74141570 B Ex-Cpl Ashish Kumar Chauhan contracted HIV in

May, 2014 which may be for reasons other than blood tansfusion.”

64. These findings were accepted. However, those conclusions were not in fact

acted upon: as is evidenced by the fact that the appellant’s categorization as a

51

Lt Col Devika Bhat was asked – “Was the screening of blood for HIV before transfusion dispensed with?” and

she replied that –“The requisite blood was duly screened as per existing guidelines in vogue at that time. The

same may please be confirmed from 171 MH.”

35

person discharged on account of disability attributable to service, entitling him to

pension has not been revoked or cancelled. Now, as far as manifestation of the

HIV positive condition is concerned, medical opinions, and those of

organizations such as WHO appear to be unanimous that after the point of

infection (known as Stage 1), the second phase (Stage 2) can be for a long period.

At Stage 1 “the virus replicates using the body’s CD4 T cells and spreads

throughout the body. In doing so, it destroys CD4 T cells. Eventually, this process

stabilizes. The immune system reduces the number of viral particles, and levels

of CD4 T cells may rise. However, the number of these cells may not return to its

original level.”

52

The second stage is described as follows:

“After the acute stage has ended — and if the person has not

received treatment — the virus remains active, reproducing at very

low levels but continuing to damage immune cells.

At this stage, there are usually no symptoms or very mild ones. This

is why doctors sometimes call stage 2 “asymptomatic HIV

infection” or “clinical latency.” The virus can still pass to others

during this stage, even if it causes no symptoms.

Without treatment, this stage can last for 10 years or more before

the person develops stage 3 HIV.”

65. The Guidelines on HIV Testing issued by Central Government

53

, the Union

Ministry of Health and Family Welfare, National Aids Control Organization

(NACO), March 2007 similarly describes the second phase as the “latent phase”

and “the asymptomatic stage”, a “period on average lasts for 8-10 years.”

According to those guidelines, the long-term survival of most afflicted persons

(80-90%) was 10 years or more, and a small percentage (5%) “do not experience

clinical progression of HIV.” Such persons are described as “long term non-

progressors (LTNPs)”. The respondents strongly relied on the Ministry of

Defence’s Guide to Military Officers (Military Pensions), 2008, which contained

a tabular chart (in Appendix to Chapter VI titled “INCUBATION PERIODS IN

52

https://www.medicalnewstoday.com/articles/316056, HIV timeline: What are the stages, (last accessed on

16.09.2023 at 05.17 AM).

53

Guidelines on HIV Testing issued by the Union Ministry of Health and Family Welfare, National Aids

Control Organization (NACO), 2007

36

RESPECT OF CERTAIN INFECTIOUS DISEASES” ). Against the column

containing HIV, the initial “usual incubation period” was described to be 4 to 6

weeks. The “minimum and maximum period for deciding attributability” against

HIV was “1 year”. In this court’s opinion, the guide, issued by the Ministry of

Defence cannot be conclusive; as it does not show, what was the basis for the

maximum attribution period of one year; and on the other hand, the prevailing

guidelines of the national expert body indicated entirely different, and nuanced

seroprevalence periods, for different kind of individuals. Therefore, this court

holds that such a guide to military officers cannot be accepted, at least in this

case, to reject the petitioner’s claim.

66. A review of the evidence and the materials on record reveals that the

appellant was transfused with one unit of blood on 10 July 2002, at the advice of

Lt. Col. Devika Bhat, who also deposed during the CoI proceedings. There is no

indication in her deposition that the appellant was informed of the likely

consequences- or even reasonable likelihood or the possibility of contamination

or infection due to the transfusion. Likewise, he was not informed about any

potential risks. By all accounts, the appellant really had no choice because the

transfusion took place under medical advice. At some stage, the respondents

argued that if the appellant so wished, he could have opted not to go in for

transfusion. That is, in the realm of theory, no such alternative option is shown to

have been made available to him, when in fact the transfusion did take place.

(iii) The law on negligence

67. In India, medical negligence is said to have been established by an

aggrieved plaintiff or complainant when it is shown that the doctor or medical

professional was in want of, or did not fulfil the standard of care required of her

or him, as such professional, reasonably skilled with the science available at the

relevant time. In other words, a doctor is not negligent if what he has done would

be endorsed by a responsible body of medical opinion in the relevant speciality

37

at the material time. This test is known as the Bolam test

54

and has gained

widespread acceptance and application in Indian jurisprudence. It finds resonance

in several decisions. Recently, in Arun Kumar Mangalik v Chirayu Health and

Medicare Ltd.

55

, this court outlined that though Bolam has been the bulwark

principle in deciding medical (and professional negligence) cases, it must adapt

and be in tune with the pronouncements relating to Article 21 of the Constitution

and the right to health in general:

“41. Our law must take into account advances in medical science

and ensure that a patient-centric approach is adopted. The standard

of care as enunciated in the Bolam case must evolve in consonance

with its subsequent interpretation by English and Indian Courts.

[..]”

68. In United Kingdom itself, the duty of care has evolved beyond the Bolam

approach; in Sidaway v Board of Governors of the Bethlem Royal Hospital & the

Maudsley Hospital

56

and more significantly, in Montgomery v Lanarkshire

Health Board

57

(the latter decision drawing upon the reasoning of the Australian

High Court in Rogers v Whittaker

58

), the UK Supreme Court outlined the duty of

a doctor, surgeon or physician, and address the right of a patient as follows:

“An adult person of sound mind is entitled to decide which, if any,

of the available forms of treatment to undergo, and her consent must

be obtained before treatment interfering with her bodily integrity is

undertaken. The doctor is therefore under a duty to take reasonable

care to ensure that the patient is aware of any material risks

involved in any recommended treatment, and of any reasonable

alternative or variant treatments. The test of materiality is whether,

in the circumstances of the particular case, a reasonable person in

the patient’s position would be likely to attach significance to the

risk, or the doctor is or should reasonably be aware that the

particular patient would be likely to attach significance to it.”

54

So called, due to the case: Bolam v Friern Hospital Management Committee 1957(2) All.ER 118.

55

[2019] 3 SCR 281.

56

[1985] AC 871.

57

2015 UKSC 11.

58

1992 175 CLR 479.

38

69. In the present case, what was the duty of care of the treating professional?

Whilst this court cannot be oblivious of the fact that the times during which the

incident occurred were fraught in the sense that a warlike situation prevailed at

the border, at the same time, it cannot also ignore, or be blind to certain realities.

These are firstly that nothing was shown on the record to establish that 171 MH

was licensed, even as an ad hoc blood bank. Secondly, there is no material on

record as to whether the nature of equipment available at 171 MH for storing

blood and blood products was in accordance with the standards and guidelines

prevailing then, in 2002. Thirdly, during the testimony of witnesses i.e., before

the CoI, 171 MH and 166 MH, there was no specific mention about what kind of

markers were used to determine whether the transfused blood was in fact safe.

Fourthly, apart from mentioning of the guidelines by the concerned doctors, there

is nothing on record to show that such guidelines were, in fact, adhered to when

the testing as well as the transfusion took place. Fifthly, there is no evidence in

the form of deposition by the officer in charge of 166 MH, Lt Col Jyoti Borpujari

to rule out the possibility of contaminated blood-which was in fact sent to 171

MH had taken place.

70. In the opinion of this court, all the above, cumulatively point to the rather

casual and if one may say so, superficial attention paid to the entire episode

involving blood transfusion. 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, such as Lt Col Devika

Bhat of 171 MH who was present in 2002 or Col Sanjay Chauhan, to show what

39

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.

71. The principle of res ipsa loquitur has been described in Charlesworth &

Percy on Negligence

59

in the following terms:

“6-25. It has been said that “a prima facie case” should be the

preferred terminology. It means essentially a case which calls for

some answer from the defendant and will arise upon proof of: (1)

the happening of some unexplained occurrence; (2) which would not

have happened in the ordinary course of things without negligence

on the part of somebody other than the claimant; and (3) the

circumstances point to the negligence in question being that of the

defendant, rather than that of any other person”

6-26 The third requirement is usually fulfilled by showing that the

instrument causing the damage was in the management and control

of the defendant at the time of the occurrence, but this is not

essential. Where an object which causes an accident has, at all

material times, been under the control of the defendants and there

is no evidence to show how the accident happened, the presumption

of negligence cannot be displaced by evidence of the general care

that has been taken.”

This court has, on several occasions in the past, particularly in cases

involving allegations of medical negligence, invoked the principle of res ipsa

loquitur (“the thing speaks for itself”). In V. Kishan Rao v Nikhil Super Speciality

Hospital & Anr.

60

, it was observed:

59

Charlesworth & Percy on Negligence, 14

th

Edition (2018) Sweet and Maxwell @ 6-25, page 400.

60

[2010] 5 SCR 1.

40

“In a case where negligence is evident, the principle of res ipsa

loquitur operates and the complainant does not have to prove

anything as the thing (res) proves itself’. In such a case it is for the

respondent to prove that he has taken care and done his duty to repel

the charge of negligence."

72. All these facts and circumstances, in the opinion of this court, prove and

establish that by reasonable standards of evidence, the appellant has justified the

invocation of the principle of res ipsa loquitor. The principle was applied in the

Nizam Institute of Medical Sciences (supra) wherein this court held that:

“77. [..] in a case involving medical negligence, once the initial

burden has been discharged by the complainant by making out a

case of negligence on the part of the hospital or the doctor

concerned, the onus then shifts on to the hospital or to the attending

doctors and it is for the hospital to satisfy the Court that there was

no lack of care or diligence.”

Earlier, in Savita Garg (supra), the court had ruled that once the

complainant or aggrieved party had adduced some evidence that the patient

suffered (or died, as in that case) due to lack of care (or as in this case, suffered

irremediable injury due to want of diligence) “then the burden lies on the hospital

to justify that there was no negligence on the part of the treating doctor or

hospital. Therefore, in any case, the hospital is in a better position to disclose

what care was taken [..].”

73. At the same time, this court has cautioned that res ipsa loquitur cannot be

the only basis to fasten liability. This view has been advocated (and applied) in

Martin F. D’Souza (supra) and Bombay Hospital and Medical Research Centre

v Asha Jaiswal (hereafter, "Asha Jaiswal")

61

. In Asha Jaiswal (supra), this court

outlined the caution needed to apply res ipsa loquitur:

“an application of the general method of inferring one or more facts

in issue from circumstances proved in evidence”. In this view, the

maxim res ipsa loquitur does not require the raising of any

presumption of law which must shift the onus on the defendant. It

only, when applied appropriately, allows the drawing of a

permissive inference of fact, as distinguished from a mandatory

61

2021 (10) SCR 1118.

41

presumption properly so-called, having regard to the totality of the

circumstances and probabilities of the case. Res ipsa is only a means

of estimating logical probability from the circumstances of the

accident.”

The above analysis leads this court to the conclusion that 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.

(iv) The relief of damages

74. 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.

42

75. The judgment in Raj Kumar v. Ajay Kumar

62

had discussed and declared

the general principles relevant for the assessment of compensation or damages

for personal injuries. These principles have been applied, in cases involving

claims under the Motor Vehicles Act, 1988 as well as other cases, including

medical negligence cases. The court observed:

“The court or the Tribunal shall have to assess the damages

objectively and exclude from consideration any speculation or

fancy, though some conjecture with reference to the nature of

disability and its consequences, is inevitable. A person is not only to

be compensated for the physical injury, but also for the loss which

he suffered as a result of such injury. This means that he is to be

compensated for his inability to lead a full life, his inability to enjoy

those normal amenities which he would have enjoyed but for the

injuries, and his inability to earn as much as he used to earn or could

have earned. [See C.K. Subramania Iyer v. T. Kunhikuttan Nair

(1969) 3 SCC 64, R.D. Hattangadi v. Pest Control (India) (P) Ltd.

(1995) 1 SCC 551 and Baker v. Willoughby (1969) 3 All ER 1528

(HL)].

6. The heads under which compensation is awarded in personal

injury cases are the following:

Pecuniary damages (Special damages)

(i) Expenses relating to treatment, hospitalisation, medicines,

transportation, nourishing food, and miscellaneous expenditure.

(ii) Loss of earnings (and other gains) which the injured would have

made had he not been injured, comprising:

(a) Loss of earning during the period of treatment;

(b) Loss of future earnings on account of permanent disability.

(iii) Future medical expenses.

Non-pecuniary damages (General damages)

(iv) Damages for pain, suffering and trauma as a consequence of

the injuries.

(v) Loss of amenities (and/or loss of prospects of marriage).

(vi) Loss of expectation of life (shortening of normal longevity).

In routine personal injury cases, compensation will be awarded only

under heads (i), (ii)(a) and (iv). It is only in serious cases of injury,

where there is specific medical evidence corroborating the evidence

of the claimant, that compensation will be granted under any of the

heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on

account of permanent disability, future medical expenses, loss of

amenities (and/or loss of prospects of marriage) and loss of

expectation of life.”

62

2010 (13) SCR 179.

43

76. The principles discussed and commended for general application have

endured and have been consistently followed by this court, in calculating and

awarding damages.

77. This court, in Nizam Institute of Medical Sciences (supra), outlined, briefly,

what damages a person who has suffered due to medical negligence, can be

awarded. This court held that:

“92 [..] The kind of damage that the complainant has suffered, the

expenditure that he has incurred and is likely to incur in the future

and the possibility that his rise in his chosen field would now be

restricted, are matters which cannot be taken care of under the

multiplier method.”

78. The court had emphasized on the applicability of the cumulative effect upon

the patient, of the medical negligence, in the decision reported as Malay Kumar

Ganguly v Dr. Sukumar Mukherjee (hereafter “Malay Kumar Ganguly”)

63

and

held that negligence of each treating contributory fact resulting in the patient’s

condition, has to be seen: “in a case of this nature, the court must deal with the

consequences the patient faced, keeping in view the cumulative effect.” Malay

Kumar Ganguly (supra) is also an authority for the reasoning that while awarding

compensation, the court should consider “loss of earning or profit up to the date

of trial” including any loss “already suffered or is likely to be suffered in future”.

Recently, in Sidram v Divisional Manager

64

, this court underlined the rationale

for just compensation:

“32. This Court has emphasised time and again that “just

compensation” should include all elements that would go to place

the victim in as near a position as she or he was in, before the

occurrence of the accident. Whilst no amount of money or other

material compensation can erase the trauma, pain and suffering that

a victim undergoes after a serious accident, (or replace the loss of

a loved one), monetary compensation is the manner known to law,

whereby society assures some measure of restitution to those who

survive, and the victims who have to face their lives.”

63

(2009) 13 SCR 1.

64

[2022] 8 S.C.R 403.

44

In K. Suresh v. New India Assurance Co. Ltd.

65

, this court observed that:

“10. It is noteworthy to state that an adjudicating authority, while

determining the quantum of compensation, has to keep in view the

sufferings of the injured person which would include his inability to

lead a full life, his incapacity to enjoy the normal amenities which

he would have enjoyed but for the injuries and his ability to earn as

much as he used to earn or could have earned. Hence, while

computing compensation the approach of the Tribunal or a court

has to be broad-based. Needless to say, it would involve some

guesswork as there cannot be any mathematical exactitude or a

precise formula to determine the quantum of compensation. In

determination of compensation the fundamental criterion of “just

compensation” should be inhered.”

79. Recently, in Abhimanyu Partap Singh v. Namita Sekhon & Anr.,

66

this

court held that:

“compensation can be assessed in pecuniary heads i.e. the loss of

future earning, medical expenses including future medical expenses,

attendant charges and also in the head of transportation including

future transportation. In the non-pecuniary heads, the compensation

can be computed for the mental and physical pain and sufferings in

the present and in future, loss of amenities of life including loss of

marital bliss, loss of expectancy in life, inconvenience, hardship,

discomfort, disappointment, frustration, mental agony in life, etc.”

80. The appellant has claimed a total sum of ₹ 95,03,00,000/- (Rupees ninety-

five crores, three lakhs only), under various heads:

(i) ₹1.5 crores as travelling expenses, for his treatment, incurred- every

month from his house to New Delhi, (ii) ₹ 50 lakhs as the expenses for

his medicines, (iii) ₹ 1.53 crores for loss of salary, from the date of his

retirement due to not giving extension till the age of superannuation,

(iv) ₹1.5 crores as medical -expenses which he is required to incur due

to the non-availability of medical services and an immunologist at his

home town, (v) ₹10 crores for violation of his human rights, ₹ 40 crores

for mental and social agony, and ₹40 crores for his defamation.

65

(2012) 11 SCR 414.

66

2022 (16) SCR 1.

45

(ii) The total salary claimed per annum was ₹ 10,89,052 / - (i.e. ₹ 89,921/-

per month multiplied by twelve months); to the total salary for the

“leftover period of service from 31 May, 2016 to 31 May 2033.)”

calculated @ ₹ 5,44,526/-; plus a sum of ₹ 10,89,052 multiplied by 12

(number of years left, till the age of 58 years) ₹ 2,80,97,541.60, added

to which the appellant claims a factor of 1.6 (for future prospects). The

total thus worked out is ₹ 50,57,55,748.80.

81. The appellant’s claim of ₹ 89,921/- per month, is based on the calculation

that he would have earned, had he been in service if the seventh pay commission

pay fixation and adjustment were provided. However, he was discharged from

service on 31.05.2016. He claimed, in addition, a host of allowances (dearness

allowance, family assistance, house rent allowance, good conduct allowance,

etc.). No doubt these factors have to be considered when loss of earnings or

income is to be calculated. However, all allowances cannot be granted, towards

loss of earnings. This court is cognizant of the fact that the appellant has also been

drawing pension (including disability pension which is now in the range of about

₹ 6000/- per month). Even if the appellant’s calculation about loss of future

earnings were to be taken into account, given that he has been a pensioner, for the

past 7 years, adjustment of the base compensation figure for compensation for

loss of earnings has to be given. Therefore, taking a conservative consolidated

figure of ₹ 65,000/- per month, if the average pension earned is pegged @ ₹

25,000/- per month, the total figure he would be entitled towards loss of earning,

for seven years, would be about ₹ 33,60,000/-. The figure could be rounded off,

appropriately, to ₹ 35,00,000/-. The court would then, have to take into account,

the appellant’s age, as of date, which is 47 years. Again, if a multiplier of 12 is

applied to determine compensation for loss of future income, including adding

40% towards loss of future prospects, the figure would be ₹ 80,64,000/-. The total

amount, (i.e., ₹ 35,00,000/- plus ₹ 80,64,000/-) would be ₹ 1,15,64,000/- (Rupees

46

one crore fifteen lakhs sixty four thousand only). Of this, a deduction for the

expenses of the appellant, calculated @ 25% would have to be made. The figure

to be deducted would be ₹ 28,91,000/-. The total amount, towards loss of

earnings, including future earnings, would then be ₹ 86,73,000/- (Rupees eighty

six lakhs seventy three thousand only).

Mental agony

82. This court has repeatedly emphasized that mental agony is an important

factor to be taken into account while calculating compensation. In the present

case, there are multiple facts, which in the opinion of this court, establish that the

appellant suffered from callousness and insensitivity of the respondents, who

persisted in being in denial. These may be briefly set out:

a. Firstly, the appellant received the biggest jolt, when he was informed

that he was an HIV positive infected person, in May, 2014. The

subsequent tests and certifications were mere palliatives. The

respondents’ effort was to somehow get rid of his services, which they

did with effect from 31.05.2016.

b. Secondly, the appellant was virtually stonewalled in his efforts to secure

documents, and information; most of his queries under the Right to

Information Act (RTI) were turned down; he had to go in appeals.

c. Even the appellate authority 171 Military Hospital stated in its letter

(dated 12.06.2018) “is not authorized any Blood Bank and hence no

Pathologist is authorized nor posted, at any time. However, an ad-hoc

blood bank was established during ‘Op Parakram’ i.e. in 2002. Blood

would be requisitioned from 166 MH and stored at 171 MH.”

d. A tabular chart, showing the appellant’s queries, and their outcome,

with relevant particulars, is reproduced below, based on the admitted

documents placed on record:

47

S No RTI Filing

Date

RTI Reply

Date

Contents of Reply

1. 30.12.2016 18.01.2017 RTI was filed by the appellant on 30.12.2016 seeking confirmation

regarding availability of immunologist empaneled with ECHS

Polyclinic Ajmer and by response dated 18 Jan 2017, it was confirmed

that no immunologist is available in hospital at Ajmer which is

empanelled with ECHS Polyclinic Ajmer.

2. 14.01.2017 20.02.2017 RTI filed by appellant regarding allotment of service quarter/married

accommodation and the IAF replied, in the reply to the appellant’s RTI

query, that service quarter/married accommodation was allotted to a

married air-warrior to live out with his family after registration for

married accommodation by the respective individual and brought

within authorized married establishment as per seniority in waiting list.

It was further stated in reply that diagnosis and treatment mentioned

against “patient must be duly signed by CMO of concerned Government

Hospital”.

3. 14.02.2017 14.03.2017 It was stated that in the RTI reply that the information sought is

‘interrogatory in nature’ and does not fall within the definition of

“information”. It was admitted by HQ South Western Air Command,

IAF, Gandhinagar that “Medical facility is the part of service conditions

of the Indian Air Force for Air warriors.”

4. 05.05.2017 13.07.2017 RTI application filed on 05.05.2017 seeking for copies of the

appellant’s willingness certificate for blood transfusion at the 171 MH

facility and whether the treating doctor informed the appellant about the

risks associated with the blood transfusion. The reply was that no such

records are available with the hospital as same fell under exemption

under Section 8(1) of the RTI Act, 2005 and the respective records were

forwarded to respective records office after discharge from the hospital.

5. 18.06.2017 18.08.2017 An RTI was filed on 18 Jun 2017 wherein amongst other things,

appellant asked for maximum age an airman can serve in IAF and when

will seventh pay commission be effective from. It was replied by reply

dated 18.08.2017 that revised 7

th

pay commission is effective from

01.01.2016 and maximum age airman can serve in IAF is 57 yrs.

(subject to extension on meeting eligibility criteria and service

exigencies).

6. 03.07.2017 11.07.2017 RTI application also filed on 03.07.2017 by the appellant to Ministry of

Finance, Department of Economic affairs seeking details about the

ongoing inflation rate as per the Consumer price index for the financial

year 2014-15 and response was provided for the same vide letter dated

11.07.2017.

7. 02.12.2017 04.01.2018 BH, Delhi Cantt -10 replied that no Immunologist is posted at BH, Delhi

Cantt-10. However, doctors were available who could treat HIV/AIDS

patient at BH, Delhi Cantt-10.

48

8. 26.10.2018 05.12.2018 RTI by the appellant on 26.10.2018 to CPIO, Indian Army regarding

his blood group and RH Factor Test report in respect of blood

transfusion at the 171 Military facility in 2002, and by reply dated

05.12.2018 the respondent admitted that Blood Group and RH Factor

Test Report of appellant in respect to Blood transfusion was NOT

available.

9. 22.04.2019 Date

unclear

On 22.04.2019, another RTI application by the Appellant requesting for

medical records in respect of the medical board proceedings dated

12.12.2014 and any correspondence between the IAF and the Registry

of the military facility at MH 171 and the reply (undated) stated that

that no such information was available.

10. 27.04.2019 Date

Unclear

RTI application dated 27.04.2019 to CPIO Food Corporation of India

wherein he asked for reasons for exclusion of HIV category patients

from the category of Persons with Disability and reference was made to

a reply letter dated 29.05.2018. It was admitted by the Food Corporation

that HIV disease/ HIV positive applicants were not considered in

category of Persons with disability and in the Online Application Form.

No option was available there to disclose the HIV positive status of the

appellant.

11. 17.05.2019 21.05.2019 RTI application dated 17.05.2019 filed by appellant asking for copy of

correspondence between 171 MH facility and Senior Medical Officer,

SMC, HQ, SWAC (U) Gandhinagar in 2014 regarding medical board

proceeding dated 12.12.2014, and by reply, it was informed that no such

correspondence existed.

12. 18.07.2019 16.08.2018 On 18 July 2019, Appellant filed RTI application for written

correspondence between Air Force and Registrar at 171 MH Medical

facility in respect of his letter dated 21 Jul 2014 and 16 Sep 2014. By

letter dated 16.08.2018, he was informed that no such correspondence

in respect of the above stated letter was exchanged between the IAF and

the Registrar of the military facility (i.e., MH 171).

13. 27.06.2019 03.07.2019 RTI filed on 27

th

June 2019 seeking for details of availability of

transfusion medicine expert at the 171 MH Military facility and vide

reply letter dated 03.07.2019, it was admitted by the first respondent

that no such transfusion medicine expert (doctor) was available and no

blood grouping & Cross matching test report is available at the said 171

Military hospital facility.

14. 13.05.2022 23.05.2022 RTI application filed on 13.05.2022 by the appellant to 171 Military

Hospital requesting for the medical records pertaining to transfusion of

blood on 10.07.2002 and information relating to source of the donor and

vide reply dated 23.05.2022. The appellant was informed that no such

information is available with the respondents’ without assigning any

reasons for same.

15. 31.07.2022 11.08.2022 Another RTI dated 31.07.2022 filed by appellant to ECHS Cell, Station

headquarters, Ajmer asking for his eligibility to become ECHS (Ex-

Service Contributory Health Scheme) and it was replied vide letter

dated 11.08.2022 that no provision exist by which Appellant can

become member of ECHS prior to retirement which falls on

49

31.05.2016, and even after retirement, Appellant had to register himself

to become a member of the ECHS and it was never mentioned in office

letter dated 25.07.2022 that he had become member of ECHS from his

date of retirement i.e. on 31 May 2016.

16. (Unclear) 06.05.2022 Another RTI was filed by the Appellant where appellant asked for

information to be provided to him about name of laboratory test through

which he is likely to be infected with virus. AIIMS vide letter dated

06.05.2022, while referring to NACO Guidelines for HIV testing, 2015,

stated that “none of the diagnostics modalities can ascertain or dig out

the cause of action for HIV virus that later became HIV positive”.

17. 24.07.2022 11.08.2022 RTI application dated 24 Jul 2022 filed by the appellant asking if any

circular/letter/memorandum/order exists which exempts defense

personnels from complying with NACO circular and guidelines to

which it was responded vide letter dated 11 Aug 2022 that no such

circular/order/memorandum/letter exists.

18. 23.10.2022 24.11.2022 RTI application dated 23.10.2022 (received by Base Hospital, Delhi

Cantt-10 on 01.11.2022) filed by Appellant u/s 7(1) of RTI Act (which

further provides that when an information concerns life or liberty of a

person, same information shall be provided within 48 hrs of receipt of

the request). Amongst other thing ), he has asked whether the hospital

lab has facility for CD-4 counts. Hospital replied that though they have

facility for laboratory test for HIV RNA for HIV defense personnel,

however lab does not have facility for CD 4 counts. (In their reply, they

also mentioned that provisions of section 7(1) of RTI Act should not

have been invoked by the Appellant as no imminent danger to life or

liberty was demonstrably proven by Appellant in case information is

not supplied within 48 hrs.)

e. The same appellate authority’s order clearly went beyond its remit, and-

as discussed earlier, went on to highlight entirely external factors, such

as the appellant’s alleged marital discord; it even mentioned the name

of his spouse.

f. Once the appellant approached the Commission, and notice was issued,

in 2017, the respondents decided that the issue had to somehow be dealt

with; by orders issued in May 2018, after notice was received, and when

the reply was being planned, the CoI was constituted.

g. The CoI did not involve the appellant at all; the entire effort was to

somehow see how the respondents could absolve themselves from

liability.

50

83. This court has, in the past, highlighted that the head of mental agony has

to be assessed and granted while awarding compensation (Ref. Spring Meadows;

V. Krishna Kumar v State of Tamil Nadu

67

). In the latter case, the High Court had

awarded damages, upon a finding of negligence on account of lack of care due to

blood transfusion to the baby at the time of her premature birth, which led to a

medical condition, i.e., progressive retinal disease. The court not only granted

damages under the head of mental agony, but also towards past medical expenses,

and future medical expenses, after factoring an annual inflation rate of 1% per

annum. The total sum awarded was ₹1.38 crores.

84. In the present case, the shock and agony faced by the appellant, the trauma

which he felt because of the virtual denial of his condition, the stonewalling

attempts of the respondents, in firstly denying his requests for information, and

then, holding a CoI behind his back, are actionable. Whilst individuals’ roles

cannot be pinpointed, the overall inference one is left to draw is overwhelming

prejudice- despite the appellant’s unblemished track record of service in the IAF.

The premature retirement, and to cap it all (in an incident for which the

respondents cannot be held responsible) his rejection by a public sector company,

the Food Corporation of India (FCI) on the ground of his being HIV positive are

aggravated factors. The IAF could certainly have taken pro-active steps to ensure

that the appellant was provided with some alternative employment, within its

organization, or as part of the armed forces’ rehabilitation programmes for

veterans and ex-servicemen. The overall result was acute mental agony caused to

the appellant. This court is of the opinion, that the appellant is entitled to ₹

50,00,000/- (Rupees fifty lakhs only) towards this head.

85. The appellant had highlighted how his attempt to secure employment

elsewhere has been thwarted and relied upon the correspondence with FCI. The

respondents cannot be fastened with liability on that score, however, at the same

67

2015 (8) SCR 100.

51

time, it would be relevant to highlight that Parliament has enacted the HIV and

AIDS (Prevention and Control) Act, 2017 (hereafter, “HIV Act”) which protects

and promotes the rights of persons affected by HIV and AIDS. The Act came into

force on September 10, 2018. Its objectives are the prevention and control of the

spread of HIV and AIDS and the reinforcement of legal and human rights of HIV

infected persons and those affected by AIDS. It protects the rights of healthcare

providers as well.

86. The HIV Act addresses stigma and discrimination

68

(Section 3); and aims

at the creation of an environment enabling or enhancing access to services.

Section 5 of the HIV Act elaborately imposes obligations upon persons to seek

informed consent of concerned persons, before HIV related testing or procedures

are undertaken, and before any line of medical treatment is to be given. Other

provisions enabling access to diagnostic facilities related to Anti-Retroviral

Therapy (ART) and opportunistic infection management for people living with

HIV and AIDS have been made. Further, the HIV Act provides for a grievance

redressal mechanism in the form of an Ombudsman at the state level and a

Complaints Officer at the establishment level for providing speedy redressal.

Section 34 of the HIV Act imposes obligations upon courts to anonymise the

name of the individual concerned affected by HIV positive or AIDS, and also

expedite legal proceedings.

68

Section 2 (d) (b) defines discrimination as something where a person “denies or withholds any benefit,

opportunity or advantage from any person or category of persons, based on one or more HIV-related ground”

Section 3, inter alia, states that:

“3. No person shall discriminate against the protected person on any ground including any of the following,

namely:— (a) the denial of, or termination from, employment or occupation, unless, in the case of termination,

the person, who is otherwise qualified, is furnished with— (i) a copy of the written assessment of a qualified and

independent healthcare provider competent to do so that such protected person poses a significant risk of

transmission of HIV to other person in the workplace, or is unfit to perform the duties of the job; and Prohibition

of discrimination. (ii) a copy of a written statement by the employer stating the nature and extent of administrative

or financial hardship for not providing him reasonable accommodation; (b) the unfair treatment in, or in relation

to, employment or occupation;…”

52

87. This court is conscious of the fact that the provisions of the HIV Act cannot

be applied to the facts of this case. Yet, it enacts standards and imposes

obligations upon several authorities, including the justice delivery system, to take

specified measures to ease and mitigate the hardships and barriers which HIV or

AIDS affected persons, would ordinarily face. In the light of its provisions, this

court proposes its effective implementation, through operative directions to be

issued hereafter.

Future care

88. The HIV positive condition is such that it can lead to slow and debilitating

results. The steady weakening and degenerative form of the condition has been

described as follows

69

:

“Acute infection

An HIV-positive person may not have many serious symptoms

during this stage, but there are usually large quantities of virus in

their blood as the virus reproduces rapidly. Acute symptoms can

include: (a) fever (b) chills (c) night sweats (d) diarrhea; (e)

headache (f) muscle aches (g) joint pain (h) sore throat (i) rash (j)

swollen lymph nodes (k) mouth or genital ulcers

Chronic HIV infection

The next stage is called the chronic infection stage. It can last for as

long as 10 to 15 years An HIV-positive person may or may not show

signs or have symptoms during this stage. As the virus advances, the

CD4 count decreases more drastically. This can lead to symptoms

such as: fatigue; shortness of breath; cough; fever; swollen lymph

nodes; weight loss; diarrhea; rash.

AIDS

If untreated HIV advances to AIDS, the body becomes prone to

opportunistic infections. AIDS increases a person’s risk for many

infections, including a herpes virus called cytomegalovirus (CMV).

It can cause problems with the eyes, lungs, and digestive tract.

Kaposi sarcoma, another possible complication, is a cancer of the

blood vessel walls. It’s rare among the general population, but it’s

more common in people with advanced HIV. Symptoms include red

or dark purple lesions on the mouth and skin. It can also cause

69

https://www.healthline.com/health/hiv-aids/effects-on-body#respiratory-and-cardiovascular-systems, last

accessed at 05:41 AM on 25

th

September, 2023.

53

problems in the lungs, the digestive tract, and other internal organs.

HIV and AIDS also put a person at higher risk for

developing lymphomas. An early sign of lymphoma is swollen lymph

nodes.

Respiratory and cardiovascular systems

HIV makes it hard to fight off respiratory problems such as the

common cold and flu. In turn, an HIV-positive person may develop

related infections, such as pneumonia Without treatment for HIV,

advanced disease puts an HIV-positive person at an even greater

risk for infectious complications, such as tuberculosis and a fungal

infection called pneumocystis jiroveci pneumonia (PJP). PJP

causes trouble breathing, cough, and fever. The risk of lung cancer

also increases with HIV. This is due to weakened lungs from

numerous respiratory issues related to a weakened immune system.

According to available research, lung cancer is more prevalent

among people with HIV compared to people without it.

People with HIV are more likely to develop high blood pressure.

HIV also raises the risk of pulmonary arterial hypertension (PAH).

PAH is a type of high blood pressure in the arteries that supply

blood to the lungs. Over time, PAH will strain the heart and can

lead to heart failure.

If a person has HIV with a low CD4 count, they’re also more

susceptible to tuberculosis (TB).

TB is an airborne bacterium that affects the lungs. It’s a leading

cause of death in people who have AIDS. Symptoms include chest

pain and a bad cough that may contain blood or phlegm. The

cough can linger for months.”

89. In the present case, the appellant was diagnosed HIV positive, and

immediately placed under ART which continues till date. His immune system has

gone down, due to the untreated condition, for some undetermined time. He

complains of reduced mobility; the IAF itself has characterised his disability,

though assigned it a figure of 30% disability; that was, however, sufficient for

them to dispense with his service. As time progresses, he would need the

assistance of a helper. Even conservatively calculated, such a helper would have

to be paid about ₹ 10,000/- to ₹ 15, 000/- per month. If a calculation of average

of ₹ 10,000/- to ₹ 15,000/- (i.e., ₹ 12,500/-) for twelve years is taken into account,

the total sum would be ₹ 18,00,000/- (Rupees eighteen lakhs only).

54

Future medical care

90. The respondents, through the available medical facilities, have till date

provided medical assistance. Repeatedly during the hearing, the appellant had

been complaining of obstruction and delay, and denial of his requests. The court

had intervened. Oftentimes, the appellant – perhaps due to his condition, and

repeated feeling of exclusion, might have overreacted. Yet, it is undeniable that

the respondents owe a duty to ensure that the appellant’s requests are met in a

compassionate and timely manner. To avoid any future friction, this court hereby

directs the respondents to extend fullest co-operation to the appellant, in regard

to his future medical treatment. Furthermore, the appellant shall be entitled to bi-

monthly medical check-ups at the relevant departments, in the Research and

Referral Centre (R&R) in New Delhi; for that purpose, the respondents shall

ensure that the necessary travel expenses, in accordance with the appellant’s

entitlement are disbursed. It is also clarified that the appellant should fill out

whatever forms are necessary for the timely disbursement of his pension, and

entitlement, on a monthly basis.

91. Before issuing concluding directions, this court would like to record some

relevant observations. People sign up to join the armed forces with considerable

enthusiasm and a sense of patriotic duty. This entails a conscious decision to put

their lives on the line and be prepared for the ultimate sacrifice of their lives. A

corresponding duty is cast upon all state functionaries, including echelons of

power within the armed forces to ensure that the highest standards of safety

(physical/mental wellbeing, medical fitness as well as wellness) are maintained.

This is absolutely the minimum required of the military/air force employer for

not only assuring the morale of the forces but also showing the sense of how such

personnel matter and their lives count, which reinforces their commitment and

confidence. Any flagging from these standards – as the multiple instances in the

present case have established, only entails a loss of confidence in the personnel,

55

undermines their morale and injects a sense of bitterness and despair not only to

the individual concerned but to the entire force, leaving a sense of injustice. When

a young person, from either sex (as is now a days the case) enrols or joins any

armed forces, at all times, their expectation is to be treated with dignity and

honour. The present case has demonstrated again and again how dignity, honour

and compassion towards the appellant were completely lacking in behaviour by

the respondent employer. Repeatedly the record displays a sense of disdain, and

discrimination, even a hint of stigma, attached to the appellant, in the attitude of

the respondent employer. Although this court has attempted to give tangible

relief, at the end of the day it realizes that no amount of compensation in monetary

terms can undo the harm caused by such behaviour which has shaken the

foundation of the appellant’s dignity, robbed him of honour and rendered him not

only desperate even cynical.

Concluding directions

92. As a result of the above discussion, it is held that the appellant is entitled

to compensation, calculated at ₹ 1,54,73,000/- (Rupees one crore fifty four lakhs

seventy three thousand only) towards compensation on account of medical

negligence of the respondents, who are held liable, for the injury suffered by the

appellant. It is also held that since individual liability cannot be assigned, the

respondent organizations (IAF and Indian Army) are held vicariously liable,

jointly, and severally, to the above extent. The amount shall be paid to the

appellant within six weeks by the IAF, his employer; it is open to the IAF to seek

reimbursement, to the extent of half the sum, from the Indian Army. All arrears

related to disability pension too shall be disbursed to the appellant within the said

six weeks period.

93. In keeping with the mandate of the HIV Act, the following directions are

issued to the Central and State Governments:

56

1) Under Section 14 (1) of the HIV Act, the measures to be taken by the

Central Government and all the State Government are, to provide, (as

far as possible), diagnostic facilities relating to HIV or AIDS, Anti-

retroviral 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, Anti-

retroviral 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. These

measures and guidelines shall be issued within three months, and

widely disseminated, in the electronic media, print media and all

popularly accessed public websites.

3) Under Section 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 Section 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. By reason of Section 16 (2) of the

HIV Act, the parents or guardians of children affected by HIV and

AIDS, or any person acting for protecting their interest, or a child

affected by HIV and AIDS may approach the Child Welfare Committee

[within the meaning of that expression under Section 29 of the Juvenile

Justice (Care and Protection of Children) Act, 2000] for the safe

keeping and deposit of documents related to the property rights of such

57

child or to make complaints relating to such child being dispossessed

or actual dispossession or trespass into such child’s house.

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 [under Section

18(1) of the HIV Act] for care, support and treatment of children

infected with HIV or AIDS; in particular, having regard to Section 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. The Central Government shall also notify HIV

and AIDS policy for establishments in terms of Section 12 of the HIV

Act.

7) It is further directed that under Section 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.

58

8) By reason of Section 20 (1) of the HIV Act, the provisions of Chapter

VIII

70

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 Section 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

Section 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 Section 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. The rules in this regard may be formulated by the Central

Government at the earliest, preferably within 8 weeks from today.

11) The Secretary, Department of Labour of every state shall ensure the

collection of information and data relating to compliance with Sections

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” [under Section 2 (f) of the HIV Act] which reads as

follows:

““establishment” means a body corporate or co-operative society

or any organisation or institution or two or more persons jointly

carrying out a systematic activity for a period of twelve months or

70

Dealing with “Safe Working Environment”.

59

more at one or more places for consideration or otherwise, for the

production, supply or distribution of goods or services.”

Such information shall be forwarded to the Secretary, Union Ministry of Labour

and Employment, within 10 weeks. The Union Labour and Employment

Secretary shall file an affidavit of compliance containing a tabular statement, with

respect to implementation of provisions of the Act, within 16 weeks from today.

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 Section 34

71

of the HIV Act. Chief Justices of all High

Courts, shall compile information, and device methods of collecting

information in that regard, anonymizing identity of persons affected,

appropriately and also complying with provisions of Section 34 (2) of

the HIV Act. The Registrar General of the Supreme Court shall also

look into the matter, and frame relevant guidelines which, after

approval be issued and implemented.

94. Before concluding, this court would place on record its appreciation and

gratitude to the amicus, Ms. Meenakshi Arora Senior Advocate, for her valuable

assistance; the assistance given by Mr. Vikramjit Banerjee, the ASG; and Ms.

Vanshaja Shukla, the amicus who painstakingly compiled the paper-book, and

patiently heard the appellant with the aim of addressing all his concerns and

assisted Ms. Arora. The court would also acknowledge the appellant’s

71

34.(1) In any legal proceeding in which a protected person is a party or such person is an applicant, the

court, on an application by such person or any other person on his behalf may pass, in the interest of justice,

any or all of the following orders, namely:—

(a) that the proceeding or any part thereof be conducted by suppressing the identity of the applicant by

substituting the name of such person with a pseudonym in the records of the proceedings in such

manner as may be prescribed;

(b) that the proceeding or any part thereof may be conducted in camera;

(c) restraining any person from publishing in any manner any matter leading to the disclosure of the

name or status or identity of the applicant.

60

perseverance and the diligent research and scholarship put in by him, in the

relentless quest for justice. The respondents are directed to bear the costs

quantified at ₹ 5,00,000/- (Rupees five lakhs only) which shall also be paid to the

appellant, within six weeks. The Supreme Court Legal Services Committee shall

bear the honorarium of ₹ 50,000/- (Rupees fifty thousand only) to be paid to the

amicus Ms. Shukla.

95. The appeal is allowed and any pending applications are disposed of in the

above terms.

.............................................J.

[S. RAVINDRA BHAT]

.............................................J.

[DIPANKAR DATTA]

NEW DELHI;

SEPTEMBER 26, 2023