1. Brief facts deciphering, this case as narrated in the body of the claim in nutshell are as under;
2. On 06.01.2009, the claimant visited the defendant's lab for medical test which reported the claimant as suffering from HCV as positive. The claimant sought further medical reports from NIBGE, Faisalabad and National Laboratory Faisalabad and both these reports showed HCV Virus as negative and finally another report was sought from the defendant's laboratory on 09.02.2009, which also showed HCV as negative. Under such circumstance, as the claimant suffered mental agony due to the defendant's faulty service/wrong medical report, hence, this claim under section 25 of PCPA 2005.
3. The defendant has vehemently contested the above said claim by submitting his statement of defence. Both the parties have submitted their affidavits in support of their respective versions and they have also tendered the documents. As it was merely the question of veracity of the statements made by the parties through their respective affidavits, therefore, cross examination was not deemed necessary as if done so the whole objective of the law under the Consumer Protection Act 2005, would have been defeated and there would have been hardly any difference between the proceedings before consumer forum and a Civil Court. Therefore, soon after submission of the affidavits by the parties and production of documents by them, I have heard learned counsel for the parties at length and have scrutinized and scanned such evidence on record carefully and in- estimably.
4. From careful scrutiny of evidence led by the parties, following points are crystal clear to my entire satisfaction; a. Javaid Iqbal Bharwana is the owner of Askari Laboratory Gojra Road Jhang Sadar; b. The defendant's Laboratory gave the report to the claimant showing him suffering from HCV as positive but further medical reports from NIBGE dated 02.02.09, National Laboratory dated 05.02.09 and the defendant's laboratory dated 09.02.09, reported HCV as negative; c. The cause of action arose to the claimant on 09.02.09, when the defendant's own laboratory contradicted his previous report showing the claimant's HCV as negative, hence, the claim lodged on 11.03.09, is within limitation under the first proviso of section 28(4) of PCPA 2005; d. There are copies of legal notice alongwith receipts of the registered cover envelops showing that the legal notices under section 28 of PCPA 2005, reached its destination at the defendant's address; e. As Javaid Iqbal Bharwana, Being the owner of Askari Laboratory at Jhang Sadar, is in the helm of affairs, hence, he is responsible for all the acts of the said laboratory.
5. From the above said facts and circumstances, the only controversial point to be resolved is whether or not the services of the defendant's are faulty and defective for providing a false medical report to the claimant?.
6. In order to arrive at a right conclusion, I have critically reappraised the evidence on record taking into consideration all the pros and cons of the case. The defendant has dared not to deny contradictory report of his laboratory about the HCV of the claimant. The claimant has also tendered the medical reports of NIBGE and National Laboratories Faisalabad showing that the claimant's report showing him suffering from HCV as positive by the defendant's laboratory was false. However, it has been contended from defendant's side, that as per HCV Elisa test kit there are some chances of false report that, therefore, the defendant may not be held responsible for providing false positive HCV test to the claimant. Any how, from the claimant's side it has been vehemently argued that the testing blood type are basic and fundamental aspects of blood test and pathological labs are required to be extremely careful since the wrong report can make the difference between life and death.
7. For the above said scenario, the defendant has alleged that he acted in accordance with general and approved practice in order to show that he has not been negligent and there are chances of false positive results. This may be strong evidence that the defendant has not been negligent but still it is not conclusive proof in his favour and the defendant may still be negligent because the negligence of duty does not seize to be neglect of duty by saying that the general and approved principles have been followed as it could be an obvious folly to do so. Therefore, it is safely concluded that the responsibility squarely falls and devolves upon the defendant to have exercised the necessary care for avoiding the wrong medical pathological result. Seen from what ever angle, it is proved that the defendant was negligent in providing the medical services to the claimant.
8. Apart from what has been discussed above, the claimant has not only to prove that the defendant owes him a duty of the case and has breached his duty but also that he caused him a loss. In this case, although the claimant's legal right has been infringed but he has suffered no actual damage, as the courts have always been slow to allow for nervous shocks unless they have been coupled with physical injury to the claimant because there is no liability for emotional distress or grief unless this leads to a recognizable medical conditions, mental depression, personality change, posttraumatic stress disorder.
9. Under such circumstances I am fortified in my opinion that the claimant may be awarded a trifling amount as such compensation/damages are awarded morally, if not legally, for what the defendant did to the claimant, therefore, the defendant shall now pay Rs. 10000/- to the claimant as compensation and legal expenses. The claim is disposed of accordingly. File be consigned to the record room after its due completions.