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

- **Citation:** 2023 INSC 857
- **Court:** Supreme Court of India
- **Decided:** 2023-09-26
- **Case number:** Civil Appeal No. 7175 of 2021
- **Bench:** S. Ravindra Bhat, Dipankar Datta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-cpl-ashish-kumar-chauhan-retd-v-commanding-officer-ors-36680
- **Pages:** 65

## Headnote

Issue for consideration: The appellant was transfused with one blood
unit in the year 2002 at 171 Military Hospital. In 2014, appellant's blood
samples revealed that he was suff ering from HIV. The Complaint fi led by
the appellant before the NCDRC seeking compensation was dismissed.
Whether the dismissal of his complaint was justifi ed.
Consumer Protection - Medical Negligence - Jurisdiction -
Whether the appellant's case is under the Consumer Protection Act,
1986 - What are alternative basis for exercising jurisdiction - Can the
court consider questions of fact:
Held: Keeping in line with the reasoning that furthered the objectives
of the CPA 1986, spelt out in Indian Medical Assn. v. V.P. Shantha, in
Regional Provident Fund Commissioner v. Shiv Kumar Joshi it was held
that the defi nition of "consumer" under the Act includes not only the person
who hires the "services" for consideration but also the benefi ciary, for
whose benefi t such services are hired - Even if it is held that administrative
charges are paid by the Central Government and no part of it is paid by the
employee, the services of the Provident Fund Commissioner in running
the Scheme shall be deemed to have been availed of for consideration by
the Central Government for the benefi t of employees who would be treated
as benefi ciaries within the meaning of that word used in the defi nition of
"consumer" - There are several precedents of the Supreme Court, which
justify the exercise of jurisdiction u/Art. 32 of the Constitution - The
Supreme Court has declared the importance of reaching out to injustice
602
SUPREME COURT REPORTS
[2023] 14 S.C.R.
and using its powers, including u/Art. 142 of the Constitution in its various
decisions - However, if there are any statutory conditions or limitations,
its exercise of Art.142 jurisdiction would have to weigh that in; further,
the kind of relief to be given in any one case is entirely fact dependent and
involves taking into account all relevant factors, subjective to the record in
that case - Further, the court's ability and jurisdiction to appreciate facts,
really is uncontestable - In the instant case, even if, arguendo for some
reason, appellate jurisdiction is contested, this court deems that it would
be unfair to drive the appellant to a fresh civil proceeding, particularly
having regard to his vulnerability, and would instead, combine its power,
drawing the source of its jurisdiction u/Arts. 32 and 142 of the Constitution,
especially since the respondents are the armed forces and its authorities -
The exercise of jurisdiction is legitimate and warranted, since the court has
before it, all the factual material, supported by the affi davit of the parties.
[Paras 50, 53, 54, 55, 56, 58]
Negligence - Medical Negligence:
Held: Appellant was advised to undergo blood transfusion during
operation (Parakram) - He was admitted at 171 Military Hospital and a
blood unit was transfused - Allegedly, the said blood unit was indented
from 166 Military Hospital - It is a matter of record that the concerned
doctors who were professionals, i.e., either at 171 MH or 166 MH, felt so
pressured by the absolute necessity to follow the drills that the safeguards
preceding safe transfusion to the appellant appears to have been a given a
go by, or dispensed with - In these circumstances, the normal duty of care
which would have ordinarily applied and did apply as well, was that at both
ends i.e., 166 MH and 171 MH, there should have been no doubt that blood
had been fi ltered and found safe for transfusion - Equally, something in the
form of other material on record or in the form of the oral testimony by the
medical cadre personnel, MO (physician) of 171 MH or who was present
in 2002, to show what kind of equipment such as refrigerating unit or other
chemical matter to preserve the blood and blood products, even within the
safe - When constituted or read together, all these lapses-which may be seen
singly as small or minuscule, add up t

## Text

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[2023] 14 S.C.R. 601 : 2023 INSC 857
601
CASE DETAILS
CPL ASHISH KUMAR CHAUHAN (RETD.)
v.
COMMANDING OFFICER & ORS.
(Civil Appeal No. 7175 of 2021)
SEPTEMBER 26, 2023
[S. RAVINDRA BHAT AND DIPANKAR DATTA, JJ.]
HEADNOTES
Issue for consideration: The appellant was transfused with one blood
unit in the year 2002 at 171 Military Hospital. In 2014, appellant's blood
samples revealed that he was suff ering from HIV. The Complaint fi led by
the appellant before the NCDRC seeking compensation was dismissed.
Whether the dismissal of his complaint was justifi ed.
Consumer Protection - Medical Negligence - Jurisdiction -
Whether the appellant's case is under the Consumer Protection Act,
1986 - What are alternative basis for exercising jurisdiction - Can the
court consider questions of fact:
Held: Keeping in line with the reasoning that furthered the objectives
of the CPA 1986, spelt out in Indian Medical Assn. v. V.P. Shantha, in
Regional Provident Fund Commissioner v. Shiv Kumar Joshi it was held
that the defi nition of "consumer" under the Act includes not only the person
who hires the "services" for consideration but also the benefi ciary, for
whose benefi t such services are hired - Even if it is held that administrative
charges are paid by the Central Government and no part of it is paid by the
employee, the services of the Provident Fund Commissioner in running
the Scheme shall be deemed to have been availed of for consideration by
the Central Government for the benefi t of employees who would be treated
as benefi ciaries within the meaning of that word used in the defi nition of
"consumer" - There are several precedents of the Supreme Court, which
justify the exercise of jurisdiction u/Art. 32 of the Constitution - The
Supreme Court has declared the importance of reaching out to injustice
602
SUPREME COURT REPORTS
[2023] 14 S.C.R.
and using its powers, including u/Art. 142 of the Constitution in its various
decisions - However, if there are any statutory conditions or limitations,
its exercise of Art.142 jurisdiction would have to weigh that in; further,
the kind of relief to be given in any one case is entirely fact dependent and
involves taking into account all relevant factors, subjective to the record in
that case - Further, the court's ability and jurisdiction to appreciate facts,
really is uncontestable - In the instant case, even if, arguendo for some
reason, appellate jurisdiction is contested, this court deems that it would
be unfair to drive the appellant to a fresh civil proceeding, particularly
having regard to his vulnerability, and would instead, combine its power,
drawing the source of its jurisdiction u/Arts. 32 and 142 of the Constitution,
especially since the respondents are the armed forces and its authorities -
The exercise of jurisdiction is legitimate and warranted, since the court has
before it, all the factual material, supported by the affi davit of the parties.
[Paras 50, 53, 54, 55, 56, 58]
Negligence - Medical Negligence:
Held: Appellant was advised to undergo blood transfusion during
operation (Parakram) - He was admitted at 171 Military Hospital and a
blood unit was transfused - Allegedly, the said blood unit was indented
from 166 Military Hospital - It is a matter of record that the concerned
doctors who were professionals, i.e., either at 171 MH or 166 MH, felt so
pressured by the absolute necessity to follow the drills that the safeguards
preceding safe transfusion to the appellant appears to have been a given a
go by, or dispensed with - In these circumstances, the normal duty of care
which would have ordinarily applied and did apply as well, was that at both
ends i.e., 166 MH and 171 MH, there should have been no doubt that blood
had been fi ltered and found safe for transfusion - Equally, something in the
form of other material on record or in the form of the oral testimony by the
medical cadre personnel, MO (physician) of 171 MH or who was present
in 2002, to show what kind of equipment such as refrigerating unit or other
chemical matter to preserve the blood and blood products, even within the
safe - When constituted or read together, all these lapses-which may be seen
singly as small or minuscule, add up to one thing: lack of adherence to or
breach of the relevant standards of care reasonably expected from a medical
establishment - Therefore, whilst pinpointed accountability of one or some
individuals is not possible, nevertheless the systemic failure in ensuring a
603
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING
OFFICER & ORS.
safe transfusion of blood to the appellant, is the only irresistible inference
- These facts establish medical negligence, and therefore, vicarious liability
on the part of the IAF and the Indian Army - The former is the appellant's
immediate employer; the latter was the organization controlling and in
charge of 166 MH and 177 MH. [Paras 3, 70]
Negligence - Medical Negligence - Res ipsa Loquitur - Application of:
Held: In the instant case, the condition in which the appellant found
himself, was the direct consequence of the two hospital-establishments and
their breach of the standards of care, resulting in the transfusion of the HIV
positive infected blood into the appellant, which was the causative factor
- The necessary foundational facts, to hold that the application of res ipsa
loquitur was warranted, were proved in all detail - The respondents failed
to discharge the onus which fell upon them, to establish that due care was
in fact exercised and all necessary care standards, applicable at the time,
were complied with - As a result, it is held that the respondents are liable
to compensate the appellant for the injuries suff ered by him, that are to be
reckoned in monetary terms. [Paras 73]
Negligence - Medical Negligence - Relief of damages:
Held: Medical negligence, or negligence is tied to two concepts - At
the one end is the duty of care-and establishing its breach, and thereby
fault-and resultant injury - At the other end is remedial usually restitution,
in monetary terms, by payment of damages - The ingenuity of common law
has been to adapt and evolve, through refi nement, and reinvention, the idea
of duty to care - In the case of medical professionals, or other professionals,
for instance, their duty to care not only involves the professionals' assessment
of the suitability of treatment, or use of technology, but the concomitant
duty to inform the patient (or consumer) of the likely results, or even the
risk(s) because the service recipient, so to say, has to bear the consequent
consequences - Damages, in theory, can have no limit - Yet, the duty of
care is woven with the idea of causation or proximity - Thus, only one is
liable in law to the extent of one's actions, which cause the injury - Equally,
damages are limited to consequences which are reasonably foreseeable - In
the instant case, the appellant is entitled to compensation of ₹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]
604
SUPREME COURT REPORTS
[2023] 14 S.C.R.
Directions - In keeping with the mandate of the HIV and AIDS
(Prevention and Control) Act, 2017, the following directions are issued
to the Central and State Governments:
Held: 1) Under s.14 (1) of the HIV Act, the measures to be taken
by the Central Government and all the State Government are, to provide,
diagnostic facilities relating to HIV or AIDS, Antiretroviral therapy and
Opportunistic Infection Management to people living with HIV or AIDS;
2) The Central Government shall issue necessary guidelines in respect of
protocols for HIV and AIDS relating to diagnostic facilities, Antiretroviral
therapy and opportunistic Infection Management applicable to all persons
and shall ensure their wide dissemination at the earliest, after consultation
with all the concerned experts, particularly immunologists and those
involved in community medicine, as well as experts dealing with HIV and
AIDS prevention and cure; 3) Under s.15 (1) & (2) of the HIV Act, the
Central government and every State Government shall take measures to
facilitate better access to welfare schemes to persons infected or aff ected
by HIV or AIDS - Both the Central and State Governments shall frame
schemes to address the needs of all protected persons; 4) Under s.16 (1) of
the HIV Act, the Central and all the State Governments, shall take appropriate
steps to protect the property of children aff ected by HIV or AIDS; 5) The
Central and every State Government shall formulate HIV and AIDS related
information, education and communication programmes which are ageappropriate, gender-sensitive, non-stigmatising and non-discriminatory; 6)
The Central Government shall formulate guidelines [u/s.18(1) of the HIV
Act] for care, support and treatment of children infected with HIV or AIDS;
in particular, having regard to s.18 (2) "notwithstanding anything contained
in any other law for the time being in force", the Central Government, or
the State governments shall take active measures to counsel and provide
information regarding the outcome of pregnancy and HIV- related treatment
to the HIV infected women; 7) It is further directed that u/s. 19 of the HIV
Act, every establishment, engaged in the healthcare services and every
such other establishment where there is a signifi cant risk of occupational
exposure to HIV, for the purpose of ensuring safe working environment, shall
(i) provide, in accordance with the guidelines, fi rstly, universal precautions
to all persons working in such establishment who may be occupationally
exposed to HIV; and secondly training for the use of such universal
605
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING
OFFICER & ORS.
precautions; thirdly post exposure prophylaxis to all persons working in
such establishment who may be occupationally exposed to HIV or AIDS;
and (ii) inform and educate all persons working in the establishment of
the availability of universal precautions and post exposure prophylaxis;
8) By reason of s.20 (1) of the HIV Act, the provisions of Chapter VIII
of the HIV Act apply to all establishments consisting of one hundred or
more persons, whether as an employee or offi cer or member or director
or trustee or manager, as the case may be - In keeping with proviso to
s.20 (1) of the HIV Act, in the case of healthcare establishments, the said
provision shall have the eff ect as if for the words "one hundred or more",
the words "twenty or more" were substituted; 9) Every person who is in
charge of an establishment, mentioned in s.20 (1) of the HIV Act, for the
conduct of the activities of such establishment, shall ensure compliance of
the provisions of the HIV Act; 10) Every establishment referred to in s.20
(1) of the HIV Act has to designate someone, as the Complaints Offi cer
who shall dispose of complaints of violations of the provisions of the HIV
Act in the establishment, in such manner and within such time as may be
prescribed; 11) The Secretary, Department of Labour of every state shall
ensure the collection of information and data relating to compliance with
ss. 19 and 20 of the HIV Act, in regard to designation of a complaint offi cer,
in all the factories, industrial establishments, commercial establishments,
shops, plantations, commercial offi ces, professional organizations, and all
other bodies falling within the defi nition of "establishments"; 12) Every
court, quasi-judicial body, including all tribunals, commissions, forums,
etc., discharging judicial functions set up under central and state enactments
and those set up under various central and state laws to resolve disputes
shall take active measures, to comply with provisions of s.34 of the HIV
Act. [Para 93]
LIST OF CITATIONS AND OTHER REFERENCES
Smt. Savita Garg vs. The Director, National Heart Institute [2004]
SUPP. 5 SCR 359; Laxman Thamappa Kotgiri v G. M., Central Railway
(2007) 4 SCC 596; Kishore Lal vs. Chairman, Employee State Insurance
Corporation [2007] 6 SCR 139; Indian Medical Assn. v. V.P. Shantha [1995]
Supp 5 SCR 110; Regional Provident Fund Commissioner v Shiv Kumar
Joshi [1999] 5 Suppl. SCR 294; Haryana Urban Development Authority v
606
SUPREME COURT REPORTS
[2023] 14 S.C.R.
Vidya Chetal [2019] 12 SCR 516; Joint Labour Commissioner v Kesar Lal
[2020] 5 SCR 176; Nilabati Behara v State of Orissa 1993 (2) SCC 746;
Delhi Development Authority v. Skipper Construction Co. (P) Ltd [1996]
2 Suppl. SCR 295; Anadi Mukta Sadguru Shree Muktajee Vandas Swami
Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani [1989] 2 SCR 697;
P.S.R. Sadhanantham v. Arunachalam [1980] 2 SCR 873; Gunwant Kaur
v Municipal Committee Bhatinda; ABL International Ltd. & Anr. V Export
Credit Guarantee Corporation of India Ltd. & Ors. (2004) 3 SCC 553; V.
Kishan Rao v Nikhil Super Speciality Hospital & Anr. [2010] 5 SCR 1; Raj
Kumar v. Ajay Kumar [2010] 13 SCR 179; K. Suresh v. New India Assurance
Co. Ltd [2012] 11 SCR 414; Abhimanyu Partap Singh v. Namita Sekhon &
Anr. [2022] 16 SCR 1 - relied on.
V. Kishan Rao v Nikhil Super Speciality Hospital & Another [2010]
5 SCR 1.; Nizam Institute of Medical Sciences v Prasanth S. Dhananka
& Ors. [2009] 6 SCC 1: [2009] 9 SCR 313; Fakruddin versus Principal,
Consolidation Training Institute & Ors. [1995] Supp. 1 SCR 389; State of
Uttaranchal & Ors. Vs. Kharak Singh [2008] 12 SCR 54; A. K. Kraipak
& Ors. Vs. UOI & Ors. [1970] 1 SCR 457; State ex rel. J. G., N. S. & J. T
Decided on September 25, 1997; M/S. Spring Meadows Hospital & Anr.
versus Harjol Ahluwalia Through K.S. Ahluwalia & Anr. [1998] 2 SCR 428;
Savita Garg vs. The Director, National Heart Institute [2004] Supp. 5 SCR
359; Nivedita Singh v Dr Asha Bharti 2021 SCC OnLine SC 3165; Jacob
Mathew v. State of Punjab [2005] Supp 2 SCR 307; Martin F D'Souza
v. Mohd Ishfaq [2009] 3 SCR 273; Pani Ram vs. Union of India 2021
(9) SCR 1024; Unitech v. Telangana State Industrial and Infrastructural
Development Corporation 2021 (1) SCR 1064; Arun Kumar Mangalik v.
Chirayu Health and Medicare Ltd. [2019] 3 SCR 281; Bombay Hospital
and Medical Research Centre v Asha Jaiswal [2021] 10 SCR 1118; Malay
Kumar Ganguly v Dr. Sukumar Mukherjee [2009] 13 SCR 1; Sidram v
Divisional Manager [2022] 8 SCR 403; V. Krishna Kumar v State of Tamil
Nadu [2015] 8 SCR 100 - referred to.
Bolam v Friern Hospital Management Committee 1957(2) All.ER
118; Sidaway v Board of Governors of the Bethlem Royal Hospital & the
Maudsley Hospital [1985] AC 871; Montgomery v Lanarkshire Health
Board 2015 UKSC 11; Australian High Court in Rogers v Whittaker 1992
175 CLR 479 - referred to.
607
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING
OFFICER & ORS.
Indian Medical Council (Professional Conduct Etiquettes and Ethics)
Regulations, 2002; Guidelines on HIV Testing issued by the Union Ministry
of Health and Family Welfare, National Aids Control Organization (NACO),
2007; Charlesworth & Percy on Negligence, 14th Edition (2018) Sweet and
Maxwell @ 6-25, page 400 - referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CIVIL APPELLATE JURISDICTION : Civil Appeal No.7175 of 2021.
From the Judgment and Order dated 27.08.2021 of the National
Consumer Dispute Redressal Commission in Consumer Complaint No.647
of 2017.
Appearances:
Ms. Meenakshi Arora, Sr. Adv. (Amicus Curiae), Ms. Vanshaja Shukla
(Amicus Curiae), Adv. for the Appellant.
Vikramjeet Banerjee, ASG, Nachiketa Joshi, Rajan Kumar Chourasia,
Udai Khanna, P V Yogeswaran, Vishnu Shankar Jain, Ms. Shruti Agarwal,
Ms. Janhvi Prakash, Kartik Dey, Arvind Kumar Sharma, Advs. for the
Respondents.
Petitioner-in-person
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
S. RAVINDRA BHAT, J.
1. The present civil appeal challenges an order of the National Consumer
Disputes Redressal Commission, New Delhi1 (hereafter, "Commission").
The application by - CPL Ashish Kumar Chauhan (hereafter, "appellant")
for compensation was dismissed by the Commission. The Commanding
Offi cer, 171 Military Hospital is arrayed as the fi rst Respondent; the Medical
Offi cer at the 171 Military Hospital ("171 MH") is the second respondent;
the Principal Director, Directorate of Air Veterans is impleaded as the third
respondent; the Commanding Offi cer of the South Western Air Command
(Gandhinagar HQ) is arrayed as fourth respondent, and the Senior Medical
1
In Consumer Complaint No. 647 of 2017.
608
SUPREME COURT REPORTS
[2023] 14 S.C.R.
Offi cer at the said Military facility is impleaded as the fi fth respondent.
The fi rst, second and fi fth respondents are, hereafter, referred to (unless
the context otherwise requires) as "Indian Army"; and the third and fourth
respondents, as "IAF".
I. Relevant Facts
2. The aftermath of the attack on Indian Parliament, (i.e., on 13
December 2001) was followed by heightened tensions at the Indo-Pak
border. There was troop mobilization at the border; what is termed as a
prolonged "eyeball to eyeball" confrontation between Indian armed forces
and Pakistani armed forces. During this deployment and engagement,
known as "Operation Parakram", the appellant, who was a radar operative/
technician -with the IAF, was deployed at the border. He had enrolled in the
IAF from 21.05.1996 in a permanent position and held a combatant rank.
His medical category was A4 GI [which is Category A].
3. In July 2002, as his services were needed, he was posted at 302 TRU
(Transportable Radar Unit), Pathankot. He fell sick whilst on duty during
the operation (Parakram) and complained of weakness, anorexia and passing
high colored urine. He was, therefore, admitted to 171 MH, Samba. On
10.07.2002, whilst undergoing treatment at the aforementioned facility, Lt.
Col Devika Bhat, posted as MO (Physician), advised him to undergo a blood
transfusion. One unit of blood was therefore, transfused to the appellant, for
the management of severe symptomatic anemia. The said military hospital
facility did not have a license for a blood bank but has been termed by the
Indian Army as an "ad-hoc blood bank". Apparently neither any pathologist
nor transfusion expert was posted at the facility as it was specifi cally opened
up during Parakram. The appellant alleges that 171 MH did not possess any
facility to check markers of blood, including HIV before transfusion and the
blood was indented from another military hospital - 166 Military Hospital
("166 MH") as per the SoP2 on "Adhoc Blood Bank". The treatment papers
of the appellant were entrusted to the Senior Medical Offi cer of the 302
TRU, Pathankot, for maintenance purposes. In August 2002, the appellant
was again admitted to 171 MH; and this time, his hemoglobin level was
found to have increased from 11.5gm% to 13.0gm%.
2
SoP for ad-hoc blood bank 171 Military Hospital
609
4. In April 2014, the appellant again fell ill. This time, he was admitted
to Station Medicare Centre, Head Quarter, South West Air Command (U),
Gandhinagar. The test report dated 05.03.2014, reported "negative" for the
HIV virus. While undergoing treatment at this facility, he suff ered some
complications and was consequently, transferred to Military Hospital,
Ahmedabad. On further deterioration of his health at the Ahmedabad
center, he was further transferred to INHS Asvini, Mumbai, an Indian
Naval establishment. While undergoing treatment, his blood samples were
taken and on diagnosis, the Lab reports (dated 21.05.2014 and 23.05.2014),
revealed that the appellant was suff ering from Human Immunodefi ciency
Virus (hereafter, "HIV"). According to the appellant, these two lab reports
meet the required parameters for a valid medical document, including
mention of the lab reference number and name of the medical offi cer. The
fi nding of the lab report returns as: "Positive for HIV - I Antibodies by
NACO Strelegy".
5. The appellant endeavored to trace the source of the virus and realized
that the transfusion of virus infected blood at 171 MH Samba in 2002 was
the cause of his condition. After the detection of the HIV virus, the fi rst
medical board was held on 11.06.2014 and as per the fi ndings of the Medical
Board, the infection with HIV was made - "non-attributable to service". On
being dissatisfi ed with the decision of the fi rst Medical Board, the appellant
demanded a copy of the documents relating to his blood transfusion at 171
MH, Samba in July 2002; access was however refused by the respondents
on account of their unavailability.
6. In February of 2015, the appellant was hospitalized at a military
facility in Ahmedabad owing to H1N1 (Swine) Infl uenza, Macrocytic
Anaemia, Subhyalodid, and Haemorrhage along with Immune Surveillance.
He requested information about his Personal Occurrence Report (POR)
at 171 Military Hospital, Samba in 2002 which had to be kept by the
Commanding Offi cer of the concerned unit. Pursuant to the request, the
fi fth respondent, on 24.09.2014, wrote to the IAF record offi ce, in New
Delhi and by letter dated 29.09.2014, the appellant's medical case sheet
was provided to him. The case sheet shows that though on 10.07.2002, one
unit of blood was transfused to the appellant, but whether Enzyme Linked
Immunosorbent Assay (ELISA) test was conducted before infusing the
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING
OFFICER & ORS. [S. RAVINDRA BHAT, J.]
610
SUPREME COURT REPORTS
[2023] 14 S.C.R.
blood in the appellant's body was conspicuously absent from that medical
case sheet.
7. Thus, Medical Boards were held on 12.12.2014 and 24.06.2015 and
in terms of the medical board proceedings, the appellant's disability was
attributable to service owing transfusion of one unit of blood at 171 Military
Hospital on 10th July 2002. His disability and the disability qualifying
elements for the purpose of disability pension were also assessed by the
medical board @ 30% for two years. By letter dated 22.03.20163, PCDA (P)
Allahabad endorsed the fi ndings of the Release Medical Board and agreed
with the sanctioned disability pension. Based on the fi ndings of the medical
boards, the appellant was sent to INHS, Asvini Mumbai, for his further
medical classifi cation, and the specialist4 suggested that the appellant should
be excused from physically exhaustive activities (including PT, Parade, and
standing duties).
8. On 10.09.2015, the appellant requested for the release of certifi ed
copies of his medical records. They were not provided to him despite the
fact that said records were essential for his treatment post discharge from the
service. In fact, the appellant alleges that a condition was insisted on him to
sign on the proceedings of a Release Medical Board which allegedly never
took place. On 31.05.2016, the appellant was denied extension of services
and was discharged from service, without the due proceedings of the Release
Medical Board. At the time of release, the appellant was not provided with
the Ex-Servicemen Contributory Health Scheme (hereafter, "ECHS") card
within a reasonable time and an ECHS temporary card was issued only after
an application5 was moved by him. Further, Rs. 15,000 were also deducted
from the dues owed to him post-retirement in the absence of an ECHS card
for undergoing medical treatment.
9. On 22.09.2016, the appellant wrote a letter to obtain his disability
certifi cate. That was denied to him by a letter dated 14.12.20166, which stated
that no such provision exists for issuance of printed disability certifi cate
3
Letter No RO/3305/3/Med.
4
Opinion of Specialist dated 16.12.2015
5
ApplicaƟ on dated 26.04.2016.
6
Vide Air HQ/99798/1/741570/DAV(DP/RMB).
611
in the format as desired by the appellant and subsequently on 29.08.2017,
the appellant's disability pension was sanctioned in addition to his service
pension. Pertinently, the letter dated 14.12.2016, also mentioned that:
"3. Notwithstanding above it is certifi ed that as per records held with
this offi ce, the disability "Immune Surveillance (HIV)" got affl icted
due the blood transfusion that you received at 171 MH in July 2002.
The disability is attributable to service."
10. Aggrieved by the denial of medical reports as to his blood
transfusion, the appellant preferred an RTI application7 requesting for: (i)
copies of his willingness certifi cate as to blood transfusion; (ii) information
as to whether risks were disclosed to him about blood transfusion and
whether appellant consented to those risks; and (iii) copies of blood test
report to ascertain blood group and Rh factor test report of that one unit of
blood. PIO RTI Cell8 informed the appellant that the information sought
by him was exempted under Section 8(1) of the Right to Information Act,
2005 (hereafter, "RTI Act"). Dissatisfi ed with the information provided, he
appealed to the First Appellate Authority.
11.The Appellate Authority by its order9 rejected the appeal and
observed that best eff orts were made by the respondent authorities to
trace the appellant's medical document and even admission and discharge
documents were supplied to him whenever available with the respondent.
It was further observed by the Appellate Authority that 171 MH is not an
authorized military hospital facility and it was established as an 'adhoc
blood bank' with necessary blood being requisitioned from 166 MH. It was
further observed by the Appellate Authority that old documents (including
the appellant's medical records) have been destroyed as per the necessary
policy and while disagreeing with the fi ndings of the Release Medical Board
(where HIV was attributed to the service), observed that in absence of any
causative factor between blood transfusion and acquiring HIV infection, HIV
infection cannot be attributed to the service and thus found no negligence
on behalf of the hospital authorities. Relevant fi ndings of the Appellate
Authority are reproduced below:
7
Dated 05.05.2017.
8
Vide letter no 6004/A/GS (Edn).
9
Dated 12.06.2018.
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING
OFFICER & ORS. [S. RAVINDRA BHAT, J.]
612
SUPREME COURT REPORTS
[2023] 14 S.C.R.
"10. It is informed that as per the PE of the hospital, 171 Military
Hospital is not authorized any blood bank and hence no Pathologist
is authorized or posted, at any time. However, an adhoc blood bank
was established during 'Op Parakram' i.e. in 2002. Blood would be
requisitioned from 166 MH and stored at 171 MH."
****
"16. It is pertinent to ask here as to how a blanket & an assured
statement be made that a blood transfusion carried out in 2002 is the
only causative factor for acquiring HIV infection in 2014 without
ascertaining facts about the same."
12. Meanwhile, proceedings of the Court of Inquiry (CoI) were held
on 01.07.2018 to investigate circumstances under which the appellant was
transfused blood at the 171 Military Hospital, Samba and the CoI concluded
by its fi ndings that blood provided to the appellant was duly screened for
the HIV and other markers in vogue at the relevant time and on examination
of all the witnesses, no negligence or lapse can be attributed on the part
of physician or the support staff at the said military facility. During the
proceedings, Lt Col Devika Bhat, posted as MO (Physician) at the 171 MH,
Samba deposed that the blood transfused to the appellant was duly screened
as per the guidelines and all necessary precautions were taken to prevent
HIV transmission. It was further observed by the CoI that while the Release
Medical Board has opined that infection can be attributed to service, but
the specialist opinion before the Release Medical Board failed to mention
essential details to establish a causative link between the blood transfusion
in 2002 and the detection of infection in 2014.
13. The CoI further observed that:
"6. It is further emphasized that Specialist Opinion given during RMB
has not mentioned about history of any sexual exposure, administration
of IV Fluids or injections or any prolonged Hospital treatment which
are other modes of transmission by HIV in the intervening period
between Jul 2002 to may 2014 (period between blood transfusion
at 171 MH and detection as HIV positive). Hence categorically
attributing HIV infection of the individual to blood transfusion given
in Jul 2002 may not be in order."
613
The CoI also observed that:
"8. [..] (d) All the available documents have been examined and it
emerges that there were no lapses or negligence on the part of treating
physician and supporting staff at 171 MH Samba and the blood bank
staff of 166 MH Jammu as all policy/guidelines were followed for
blood bank, screening of blood before Transfusion of one unit of blood
to 741570B Ex Cpl Ashish Kumar Chauhan."
14. The appellant fi led a complaint before the Commission seeking
compensation of ₹ 95,03,00,000 (₹95 crores 3 lakhs) plus litigation expenses
of ₹ 10,000 per hearing and suitable pecuniary punishment to the delinquent
offi cers.
II. Commission's Findings
15. The Commission dismissed the appellant's complaint and observed
that no expert opinion was adduced or proved before it for establishing
medical negligence during the blood transfusion against the respondent/
opposite parties. It was also observed that no reason existed for the opposite
parties to deny sharing of the appellant's medical records, and in fact, the
discharge certifi cate, when found was duly supplied to the appellant.
16. The Commission also relied on provisions of Indian Medical
Council (Professional Conduct Etiquettes and Ethics) Regulations, 2002
(hereafter "IMC Professional Conduct Regulations")10 to observe that the
hospital facility was not bound to preserve the appellant's medical records
beyond the period of three years and thus there is no reason to believe that
the authorities deliberately denied the appellant's medical records to him.
The Commission also relied on the blood test report dated 05.03.2014
to hold that the appellant was not infected at the 171 Military Hospital,
Samba, while denying the Medical Board's opinion dated 12.12.2014 and
24.06.2015 and a letter dated 14.12.2016 (as the same were not based on
any evidence) and thus, no negligence was attributable to the respondents.
Aggrieved by the fi ndings of the Commission, the appellant has preferred
an appeal before this court.
10 Clause 1.3.1 of Indian Medical Council (Professional Conduct Etiquettes and Ethics)
Regulations, 2002.
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING
OFFICER & ORS. [S. RAVINDRA BHAT, J.]
614
SUPREME COURT REPORTS
[2023] 14 S.C.R.
III. Proceedings in the present appeal
17. This court by an order dated 08.04.2022, considering the nature of
the controversy involved in the impugned case, appointed Ms. Meenakshi
Arora, learned senior counsel and Ms. Vanshaja Shukla, as amici curiae to
appear on behalf of the appellant and assist the court.
18. By a letter order dated 25.04.2022, this court directed the
respondents to submit the entire record pertaining to transfusion of blood
on 10.07.2002 to the appellant. As a consequence, 171 MH and 166 MH
again searched their records and by letter dated 14.06.2022 and 13.06.2022
(from 171 MH and 166 MH respectively), submitted that they were unable to
detect the appellant's medical records as they were destroyed in compliance
with the policy of destruction of old documents.
IV. Submissions by the Appellant
19. The amici and the appellant argued that it is the onus of the
respondents to establish that the two armed forces (Indian Army and IAF)
were not negligent, because of the direct acts of their doctors and the hospital.
Reference to a letter dated 12.06.2018 was made in which the Respondent
No 1 admitted in writing that 171 MH was not authorized to operate any
blood bank and therefore, no pathologist was authorized or appointed at the
facility. The appellant also referred to an RTI reply11 stating that "there was
no transfusion medicine expert (doctor) available and no blood grouping
and cross-matching test report is available".
20. The amici further argued that the respondents failed to provide
any material evidence, such as the ELISA/HIV test and blood compatibility
report of the blood unit that was transfused to the appellant in 2002, to
demonstrate that they followed their own exhibited 'Transfusion Medicine
Technical Manual and Standard Operating Procedures' that is to say that
before any blood transfusion took place, it was compulsory to conduct an
ELISA test of the blood unit to determine whether it was HIV infected or
not, ensuring that it is safe for transfusion to HIV negative person. The
appellant placed reliance on cases like Smt. Savita Garg vs. The Director,
11 Letter no. 4180/Adm./RTI/2019, dated 3.7.2019.
615
National Heart Institute (hereafter, "Savita Garg")12; V. Kishan Rao v Nikhil
Super Speciality Hospital & Another13; Nizam Institute of Medical Sciences
v Prasanth S. Dhananka & Ors. (hereafter, "Nizam Institute of Medical
Sciences")14, related to medical negligence, to support his contention that in
cases of medical negligence, the burden of proof lies with the respondents
and not with the appellant.
21. The amici and the appellant submitted that the respondents failed
to secure a written informed consent bearing his signature both before the
Commission as well as this court. As a consequence, the HIV negative
report dated 5.3.2014 cannot be accepted. It was also contended that the
report presented by the respondents is fraudulent and baseless since it was
produced by them after a signifi cant delay of more than seven years, which
is contrary to Section 1.3.1 - "Maintenance of Medical Records" of the IMC
Professional Conduct Regulations.15 Additionally, the report lacks important
details such as part-I, Lab Reference number, the name of the specifi c
pathologist, and is mentioned as referred by "self". To further counter the
accusation that the appellant had concealed the HIV negative report dated
05.03.2014, he argued that the medical sheet and related documents were
in the possession of the respondents. He was never given access to it, or a
copy of it; hence, he could not have produced the same.
22. Reference was made to Chapter 16 of "The Guidelines for HIV
Testing, March 2007", published by the National AIDS Control Organisation,
Ministry of Health and Family Welfare, to highlight the importance of
informed consent for HIV testing. The guideline states that any physician
conducting an invasive procedure on a patient must obtain informed consent;
in other words, the patient must be provided with adequate information about
the necessity of blood transfusion, available alternatives, and the potential
risks associated with both transfusion and non-transfusion options so as to
make an informed decision.
12 [2004] SUPP. 5 S.C.R. 359.
13 [2010] 5 S.C.R. 1.
14 [2009] 6 S.C.C. 1.
15 Section 1.3.1 Maintenance of medical records:

1.3.1 Every physician shall maintain the medical records pertaining to his/ her indoor
patients for a period of 3 years from the date of commencement of the treatment in a
standard proforma laid down by the Medical Council of India [..]
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING
OFFICER & ORS. [S. RAVINDRA BHAT, J.]
616
SUPREME COURT REPORTS
[2023] 14 S.C.R.
23. Diff erent medical opinions16, medical board proceedings17, and
offi cial letters18 received by the appellant from respondents after his discharge
from service, including the legal opinion of the command judge advocate,
HQ SWAC19, having categorically admitted the connection between the
appellant's disability contracted due to reasons attributable to service and
the blood transfusion of 10.07.2002, were relied upon. The appellant also
challenged the disputed medical board proceeding dated 11.06.2014, which
stated that the condition was not attributed to military services, by placing
reliance on policies of respondents20, the Drugs & Cosmetics Act, 1940 and
rules thereunder including IMC Professional Conduct Regulations, and the
guidelines for HIV testing along with 'Standards for Blood Banks & Blood
Transfusion Services'.
24. It was further argued that since the respondents have explicitly
admitted that the appellant contracted his disability due to the blood
transfusion, there is no need for further deliberation on the matter, as per
Section 58 of the Indian Evidence Act, 1872; an admitted fact need not be
proven.
25. The appellant argued that the respondents claimed to have no
records related to the appellant and the blood transfusion pertaining to
the year 2002, stating that they were destroyed. However, they presented
a receipt, issue, and expense voucher dated 12.01.2002 for two units of
B-negative human blood, which was supplied by 166 Military Hospital
(Blood bank) to 171 Military Hospital. The appellant questioned how the
respondents were able to produce this document, which is available on
record, after a gap of more than 20 years. The appellant also referred to
Section 18B21 of the Drugs and Cosmetics Act, 1940, and the Drugs and
16 Dated 24.5.2014 by the Surg Capt. Vivek Hande of HIV Physician/expert, INHS
Ashvini, Mumbai.
17 Dated 12.12.2014, 24.6.2015, 21.12.2015.
18 No. Air HQ/99798/1/741570/DAV(DP/RMB) dated 14.12.2016 and 29.8.2017.
19 Letter no. SWAC/S1276/1/AD, dated 24.5.2016.
20 IAP-4303 & GMO-2008.
21 18B. Maintenance of records and furnishing of information. -Every person holding
a licence under clause (c) of section 18 shall keep and maintain such records, registers
and other documents as may be prescribed and shall furnish to any offi cer or authority
exercising any power or discharging any function under this Act such information as
is required by such offi cer or authority for carrying out the purposes of this Act.
617
Cosmetics Rules, 1945, which pertains to maintaining of the records and
providing the information. According to this section, every person holding
a license under clause (c) of Section 18 is obligated to keep and maintain
prescribed records, registers, and other documents.
26. It was further argued that the CoI conducted by the respondents
was with the participation of the Indian Army offi cers and witnesses, without
involving or summoning the appellant. It appeared to be a mere formality
as no documents were presented before this court. It was argued that this
entire procedure was not only violative of principles of natural justice, and
fair play but a ruse to discount the medical certifi cates and conclusions
recorded which pointed to negligence of the Indian Army. This suggests that
the records produced by the respondents were added as an afterthought. The
respondents' contradictory statements about not maintaining records beyond
three years, while at the same time also producing documents that are 7 to
20 years old, further weaken their case. Further, these records cannot be
taken on record because the affi davit is signed by Capt. Alokesh Roy, offi cer
In-charge of the Legal cell, Army Hospital (R & R) Delhi Cantt, claiming to
be fi led on behalf of the respondent. The respondents have failed to produce
the copy of the notice/summons served to the appellant under Section 135
of the Army Act, 1950 regarding the CoI, which alleged that the appellant
was called for the inquiry but did not attend its proceedings. Furthermore,
the respondents never challenged the Medical Board proceedings dated
12.12.2014, 24.01.2015 and 21.12.2015, or the certifi cates issued by it,
before the appellant initiated legal proceedings against them.
27. The appellant further argued that the HIV expert's report cannot
be considered as the said expert is a regular employee of the respondent's
organization, and hence his opinion cannot be free from biases. He
placed reliance on this court's decisions in Fakruddin versus Principal,
Consolidation Training Institute & Ors.22; State of Uttaranchal & Ors. Vs.
Kharak Singh23, and A. K. Kraipak & Ors. Vs.