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Issue for consideration:The appellant was transfused with one blood unit in the year2002 at 171 Military Hospital. In 2014, appellant’s blood samplesrevealed that he was suffering from HIV. The Complaint filed bythe appellant before the NCDRC seeking compensation wasdismissed. Whether the dismissal of his complaint was justified.Consumer Protection – Medical Negligence – Jurisdiction –Whether the appellant’s case is under the Consumer ProtectionAct, 1986 – What are alternative basis for exercising jurisdiction– Can the court consider questions of fact:Held: Keeping in line with the reasoning that furthered the objectivesof the CPA 1986, spelt out in Indian Medical Assn. v. V.P. Shantha,in Regional Provident Fund Commissioner v. Shiv Kumar Joshi itwas held that the definition of “consumer” under the Act includesnot only the person who hires the “services” for consideration butalso the beneficiary, for whose benefit such services are hired –Even if it is held that administrative charges are paid by the CentralGovernment and no part of it is paid by the employee, the servicesof the Provident Fund Commissioner in running the Scheme shallbe deemed to have been availed of for consideration by the CentralGovernment for the benefit of employees who would be treated asbeneficiaries within the meaning of that word used in the definitionof “consumer” – There are several precedents of the SupremeCourt, which justify the exercise of jurisdiction u/Art. 32 of theConstitution – The Supreme Court has declared the importanceof reaching out to injustice and using its powers, including u/Art. 142 of the Constitution in its various decisions – However,if there are any statutory conditions or limitations, its exercise ofArt.142 jurisdiction would have to weigh that in; further, the kindof relief to be given in any one case is entirely fact dependent andinvolves taking into account all relevant factors, subjective to therecord in that case – Further, the court’s ability and jurisdiction toappreciate facts, really is uncontestable – In the instant case, evenif, arguendo for some reason, appellate jurisdiction is contested,this court deems that it would be unfair to drive the appellant to afresh civil proceeding, particularly having regard to his vulnerability,and would instead, combine its power, drawing the source of itsjurisdiction u/Arts. 32 and 142 of the Constitution, especially sincethe respondents are the armed forces and its authorities – Theexercise of jurisdiction is legitimate and warranted, since the courthas before it, all the factual material, supported by the affidavit ofthe parties. [Paras 50, 53, 54, 55, 56, 58]Negligence – Medical Negligence:Held: Appellant was advised to undergo blood transfusion duringoperation (Parakram) – He was admitted at 171 Military Hospitaland a blood unit was transfused – Allegedly, the said blood unitwas indented from 166 Military Hospital – It is a matter of recordthat the concerned doctors who were professionals, i.e., either at171 MH or 166 MH, felt so pressured by the absolute necessity tofollow the drills that the safeguards preceding safe transfusion tothe appellant appears to have been a given a go by, or dispensedwith – In these circumstances, the normal duty of care whichwould have ordinarily applied and did apply as well, was that atboth ends i.e., 166 MH and 171 MH, there should have been nodoubt that blood had been filtered and found safe for transfusion– Equally, something in the form of other material on record orin the form of the oral testimony by the medical cadre personnel,MO (physician) of 171 MH or who was present in 2002, to showwhat kind of equipment such as refrigerating unit or other chemicalmatter to preserve the blood and blood products, even within thesafe – When constituted or read together, all these lapses-whichmay be seen singly as small or minuscule, add up to one thing:lack of adherence to or breach of the relevant standards of carereasonably expected from a medical establishment – Therefore,whilst pinpointed accountability of one or some individuals is notpossible, nevertheless the systemic failure in ensuring a safetransfusion of blood to the appellant, is the only irresistible inference– These facts establish medical negligence, and therefore, vicariousliability on the part of the IAF and the Indian Army – The former isthe appellant’s immediate employer; the latter was the organizationcontrolling and in charge of 166 MH and 177 MH. [Paras 3, 70]Negligence – Medical Negligence – Res ipsa Loquitur –Application of:Held: In the instant case, the condition in which the appellantfound himself, was the direct consequence of the two hospital-establishments and their breach of the standards of care, resulting inthe 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 theonus which fell upon them, to establish that due care was in factexercised and all necessary care standards, applicable at the time,were complied with – As a result, it is held that the respondentsare liable to compensate the appellant for the injuries suffered byhim, that are to be reckoned in monetary terms. [Paras 73]Negligence – Medical Negligence – Relief of damages:Held: Medical negligence, or negligence is tied to two concepts –At the one end is the duty of care-and establishing its breach, andthereby fault-and resultant injury – At the other end is remedialusually restitution, in monetary terms, by payment of damages – Theingenuity of common law has been to adapt and evolve, throughrefinement, and reinvention, the idea of duty to care – In the caseof medical professionals, or other professionals, for instance, theirduty to care not only involves the professionals’ assessment of thesuitability of treatment, or use of technology, but the concomitantduty to inform the patient (or consumer) of the likely results, or eventhe risk(s) because the service recipient, so to say, has to bearthe consequent consequences – Damages, in theory, can haveno limit – Yet, the duty of care is woven with the idea of causationor proximity – Thus, only one is liable in law to the extent of one’sactions, which cause the injury – Equally, damages are limited toconsequences which are reasonably foreseeable – In the instantcase, the appellant is entitled to compensation of ₹1,54,73,000/-(Loss of earnings,₹86,73,000/- + Mental agony, ₹50,00,000/- +Future care, ₹18,00,000/-). [Paras 74, 81, 84, 89]Directions – In keeping with the mandate of the HIV and AIDS(Prevention and Control) Act, 2017, the following directionsare issued to the Central and State Governments:Held: 1) Under s.14 (1) of the HIV Act, the measures to be takenby the Central Government and all the State Government are, toprovide, diagnostic facilities relating to HIV or AIDS, Antiretroviraltherapy and Opportunistic Infection Management to people livingwith HIV or AIDS; 2) The Central Government shall issue necessaryguidelines in respect of protocols for HIV and AIDS relating todiagnostic facilities, Antiretroviral therapy and opportunistic InfectionManagement applicable to all persons and shall ensure theirwide dissemination at the earliest, after consultation with all theconcerned experts, particularly immunologists and those involvedin community medicine, as well as experts dealing with HIV andAIDS prevention and cure; 3) Under s.15 (1) & (2) of the HIV Act,the Central government and every State Government shall takemeasures to facilitate better access to welfare schemes to personsinfected or affected by HIV or AIDS – Both the Central and StateGovernments shall frame schemes to address the needs of allprotected persons; 4) Under s.16 (1) of the HIV Act, the Centraland all the State Governments, shall take appropriate steps toprotect the property of children affected by HIV or AIDS; 5) TheCentral and every State Government shall formulate HIV and AIDSrelated information, education and communication programmeswhich are age-appropriate, gender-sensitive, non-stigmatising andnon-discriminatory; 6) The Central Government shall formulateguidelines [u/s.18(1) of the HIV Act] for care, support and treatmentof children infected with HIV or AIDS; in particular, having regardto s.18 (2) “notwithstanding anything contained in any other lawfor the time being in force”, the Central Government, or the Stategovernments shall take active measures to counsel and provideinformation regarding the outcome of pregnancy and HIV- relatedtreatment to the HIV infected women; 7) It is further directedthat u/s. 19 of the HIV Act, every establishment, engaged in thehealthcare services and every such other establishment wherethere is a significant risk of occupational exposure to HIV, for thepurpose of ensuring safe working environment, shall (i) provide, inaccordance with the guidelines, firstly, universal precautions to allpersons working in such establishment who may be occupationallyexposed to HIV; and secondly training for the use of such universalprecautions; thirdly post exposure prophylaxis to all personsworking in such establishment who may be occupationally exposedto HIV or AIDS; and (ii) inform and educate all persons workingin the establishment of the availability of universal precautionsand post exposure prophylaxis; 8) By reason of s.20 (1) of theHIV Act, the provisions of Chapter VIII of the HIV Act apply toall establishments consisting of one hundred or more persons,whether as an employee or officer or member or director or trusteeor manager, as the case may be – In keeping with proviso tos.20 (1) of the HIV Act, in the case of healthcare establishments,the said provision shall have the effect as if for the words “onehundred or more”, the words “twenty or more” were substituted;9) Every person who is in charge of an establishment, mentionedin s.20 (1) of the HIV Act, for the conduct of the activities of suchestablishment, shall ensure compliance of the provisions of theHIV Act; 10) Every establishment referred to in s.20 (1) of the HIVAct has to designate someone, as the Complaints Officer whoshall dispose of complaints of violations of the provisions of theHIV Act in the establishment, in such manner and within such timeas may be prescribed; 11) The Secretary, Department of Labourof every state shall ensure the collection of information and datarelating to compliance with ss. 19 and 20 of the HIV Act, in regardto designation of a complaint officer, in all the factories, industrialestablishments, commercial establishments, shops, plantations,commercial offices, professional organizations, and all other bodiesfalling within the definition of “establishments”; 12) Every court,quasi-judicial body, including all tribunals, commissions, forums,etc., discharging judicial functions set up under central and stateenactments and those set up under various central and state lawsto resolve disputes shall take active measures, to comply withprovisions of s.34 of the HIV Act. 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