Supreme Court slams IAF, Army; awards ₹1.6 crore to veteran who got HIV after blood transfusion at military hospital

The Supreme Court on Tuesday ordered the Indian Air Force (IAF) to pay around ₹1.6 crores as compensation to a veteran who contracted the human immunodeficiency virus (HIV) during a blood transfusion at a military hospital [CPL Ashish Kumar Chauhan Retd vs Commanding Officer and ors].

A bench of Justices S Ravindra Bhat and Dipankar Datta also slammed the IAF and the Army for their conduct and held them vicariously liable, both jointly and severally.

"The present case has demonstrated again and again how dignity, honour and compassion towards the appellant were completely lacking ... 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," the bench lamented.

Pertinently, the top court also noted that the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017 (HIV Act) imposes several obligations upon various authorities to take specific measures to ease and mitigate the hardships of HIV patients.

The Court proceeded to issue a slew of directives for the Central and State governments, courts and quasi-judicial bodies to enforce the HIV Act.

These directives included requiring governments to take steps to provide diagnostic facilities relating to antiretroviral therapy and Opportunistic Infection Management to people living with HIV or AIDS, apart from protecting the property of children affected by the disease.

Other measures include conducting information, education and communication programmes that are age-appropriate, gender-sensitive, non-stigmatising and non-discriminatory.

Further, every establishment referred to in Section 20 (1) (establishments with 20 or more persons) of the HIV Act has to designate someone as the Complaints Officer to deal with grievances and ensure compliance with the Act. The rules for the appointment of such officers should be introduced by the Central Government at the earliest, preferably within 8 weeks, the Court said.

The Union Labour and Employment Secretary was directed to file a compliance affidavit on all these directions within 16 weeks.

The top court further ordered that all courts and quasi-judicial bodies must act to protect or ensure the confidentiality of the identity of HIV-positive persons who are party to court proceedings, as laid down in Section 34 of the HIV Act.

"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 of the HIV Act," the Court ordered.

Chief Justices of all High Courts and the Supreme Court Registrar were directed to compile information, frame guidelines, and come up with methods on this aspect, while keeping the identities of HIV-patients anonymous.

Background

The Court was hearing an appeal against a judgment of the National Consumer Disputes Redressal Commission (NCDRC) which had dismissed a plea by the veteran for ₹95.31 crores as compensation for the medical negligence that had led to him being infected by HIV.

The case was rooted in an incident that took place after the attack on the Indian Parliament in 2001, following which there were heightened tensions at the India-Pakistan border.

During operation Parakram in 2002, the veteran fell sick and was admitted to 171 Military Hospital in Jammu and Kashmir's Samba, where one unit of blood was transfused into his body.

In 2014, he was diagnosed with HIV. Consequently, he requested information regarding the Personal Occurrence Report (POR) related to his hospitalisation in 2002, and his medical case sheet was provided.

Subsequently, in 2014 and 2015, medical boards were convened, and it was eventually determined that his condition was linked to the blood transfusion.

Thereafter, the veteran was denied an extension of service and was discharged in May 2016. His application for a disability certificate was also denied on the ground that there was no provision for the same.

The Supreme Court took critical note that there had been superficial attention paid during the blood transfusion on several aspects.

"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 ... the systemic failure in ensuring a safe transfusion of blood to the appellant (the veteran), 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 Court said.

The Court proceeded to opine that the veteran must be compensated and pegged the amount payable as follows under the following heads:

- ₹86.73 lakh for loss of earnings;

- ₹50 lakh for mental agony;

- ₹18 lakh towards future medical care expenses;

- ₹5 lakh for litigation expenses.

Further, the IAF and Army were directed to cooperate with future medical treatment and bear the veteran's travel expenses for bi-monthly checkups.

Additional Solicitor General Vikramjit Banerjee appeared for the armed forces.

Senior Advocate Meenakshi Arora alonf with advocate Vanshaja Shukla appeared for the veteran and also acted as amici curiae.

Advocate Shukla was given an honorarium of ₹50,000 by the top court.

[Read Judgment]