Supreme Court Seeks Armed Forces' Response Over Failure To Compensate Veteran Who Got HIV After Blood Transfusion At Military Hospital

In a contempt case filed by an ex-Air Force officer, the Supreme Court today called for responses of the Indian Army and the Indian Air Force as to why he had not been paid the court-ordered sum of Rs.1.6 crores in compensation for medical negligence at a military hospital that resulted in his contracting HIV.

The Bench of Justices BR Gavai and Sandeep Mehta, while issuing notice, declined the respondents' request to defer the proceedings. In response to a submission by ASG Vikramjit Banerjee (appearing for the Armed Forces) that a review petition has been filed against the court's judgment awarding compensation, and therefore the present proceedings may be deferred, Justice Gavai said,

"Correction of costs is not in scope of this contempt petition. You get that (review) listed and heard expeditiously within 4 weeks, else we will proceed with contempt. At the most, you can get some observations deleted".

Briefly stated, the genesis of the proceedings lies in the petitioner contracting HIV pursuant to a blood transfusion done at a military hospital. He had fallen sick during Operation Parakram of 2002 and was admitted to the military hospital in Samba, J&K. There, he was transfused one unit of blood for management of severe symptomatic anemia; although neither did the facility have a license for a blood bank nor any pathologist/transfusion expert was posted at it. It was only termed by the Indian Army as "ad-hoc blood bank".

In 2014, petitioner was diagnosed with HIV and it came forth that his condition was linked to the blood transfusion in 2002. He was discharged from service in 2016 and denied a disability certificate, as apparently there was no provision to grant one.

Under these circumstances, petitioner had filed a claim before National Consumer Disputes Redressal Commission (NCDRC) for compensation of Rs.95.03 crores (plus litigation expenses). The NCDRC dismissed the plea observing that no expert opinion was adduced or proved before it for establishing medical negligence during the blood transfusion.

In September, 2023, the top court awarded him approx. Rs.1.6 crores in compensation (Rs.86.73 lacs for loss of earnings, Rs.50 lacs for mental agony, Rs.18 lacs towards future care expenses, and Rs.5 lacs for litigation expenses), holding the Army and Air Force vicariously liable, both jointly and severally. Perusing the material, the court had observed that "superficial attention" was paid to petitioner's blood transfusion and the safeguards preceding a safe transfusion appeared to have been given a go-by.

"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, is the only irresistible inference. These facts establish medical negligence, and therefore, vicarious liability on the part of the IAF and the Indian Army".

Significantly, the court had also issued certain directions to the Central and State governments at the time for enforcement of the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017.

Consequent to the failure of the Armed Forces to pay compensation as directed, petitioner moved the present contempt petition and the Supreme Court issued notice.

During the hearing today, on being apprised that Advocate Vanshaja Shukla, who acted as Amicus Curiae in the earlier proceedings and was directed to be paid an honorarium of Rs.50,000, had not been paid the sum, the Bench also orally asked the court staff to find out from the Supreme Court Legal Services Committee as to what was the reason behind the same.

Case Title: XYZ v. Col Sanjay Nijhawan and Ors., CONMT.PET.(C) No. 1267/2023 in C.A. No. 7175/2021

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