Supreme Court of India

CPL ASHISH KUMAR CHAUHAN (RETD.)versusCOMMANDING OFFICER & ORS.

Citation: 2023 INSC 857
Decided: 26 September 2023
Disposal: Appeal(s) allowed
Bench: S RAVINDRA BHAT

Holding

The Supreme Court held that the respondents were vicariously liable for medical negligence in the blood transfusion, and the appellant is entitled to compensation under the Consumer Protection Act, 1986.

Summary

The appellant, a retired Air Force corporal, was transfused with a unit of blood at 171 Military Hospital in 2002 during Operation Parakram. He later discovered he was HIV positive in 2014 and alleged that the transfusion was the source of infection, seeking compensation for loss of earnings, medical expenses, mental agony and future care. The National Consumer Disputes Redressal Commission dismissed his complaint, holding no negligence was proved. The Supreme Court examined whether the appellant was a consumer under the Consumer Protection Act, 1986, the applicability of medical negligence standards, and the relevance of res ipsa loquitur, ultimately finding systemic lapses in blood screening and vicarious liability of the Indian Army and Air Force. The Court awarded compensation of ₹1,54,73,000 and directed the respondents to comply with the HIV and AIDS Act, 2017, while also ordering costs and future medical support. The appeal was allowed, overturning the Commission's dismissal.

Issues considered

The appellant's case falls within the jurisdiction of the Consumer Protection Act, 1986.
Whether the respondents were negligent in the blood transfusion leading to HIV infection.
Whether the principle of res ipsa loquitur applies to infer negligence.
The appropriate quantum of compensation for loss of earnings, mental agony, and future care.
The applicability of alternative jurisdictional bases such as Articles 32 and 142 of the Constitution.

Legislation cited

Consumer Protection Acts. 1(4), s. 2(1)(d), s. 2(1)(o)
Drugs and Cosmetics Acts. 18B
HIV and AIDS (Prevention and Control) Acts. 14(1), s. 15(1), s. 15(2), s. 16(1), s. 18(1), s. 18(2), s. 19, s. 20(1), s. 34
Indian Medical Council (Professional Conduct Etiquettes and Ethics) Regulationss. 1.3.1
Right to Information Acts. 7(1), s. 8(1)

Subjects

medical negligenceblood transfusionHIV infectionconsumer protectionvicarious liabilityres ipsa loquiturarmed forcesright to informationcompensationmental agonydisability pension

Judgment

[2023] 14 S.C.R. 601 : 2023 INSC 857

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 suﬀering from HIV. The Complaint ﬁled by
the appellant before the NCDRC seeking compensation was dismissed.
Whether the dismissal of his complaint was justiﬁed.
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 deﬁnition of “consumer” under the Act includes not only the person
who hires the “services” for consideration but also the beneﬁciary, for
whose beneﬁt 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 beneﬁt of employees who would be treated
as beneﬁciaries within the meaning of that word used in the deﬁnition 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

601
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 aﬃdavit 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 ﬁltered 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
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING 603
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 suﬀered 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 reﬁnement, 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 aﬀected
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 aﬀected by HIV or AIDS; 5) The
Central and every State Government shall formulate HIV and AIDS related
information, education and communication programmes which are age-
appropriate, 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 signiﬁcant risk of occupational
exposure to HIV, for the purpose of ensuring safe working environment, shall
(i) provide, in accordance with the guidelines, ﬁrstly, 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
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING 605
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 oﬃcer 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 eﬀect 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 Oﬃcer
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 oﬃcer,
in all the factories, industrial establishments, commercial establishments,
shops, plantations, commercial oﬃces, professional organizations, and all
other bodies falling 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 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.
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING 607
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
Oﬃcer, 171 Military Hospital is arrayed as the ﬁrst Respondent; the Medical
Oﬃcer 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 Oﬃcer 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.

Oﬃcer at the said Military facility is impleaded as the ﬁfth respondent.
The ﬁrst, second and ﬁfth 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 speciﬁcally 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 Oﬃcer 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
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING 609
OFFICER & ORS. [S. RAVINDRA BHAT, J.]

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 suﬀered 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 suﬀering from Human Immunodeﬁciency
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 oﬃcer. The
ﬁnding 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 ﬁrst
medical board was held on 11.06.2014 and as per the ﬁndings of the Medical
Board, the infection with HIV was made – “non-attributable to service”. On
being dissatisﬁed with the decision of the ﬁrst 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) Inﬂuenza, 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 Oﬃcer of the concerned unit. Pursuant to the request, the
ﬁfth respondent, on 24.09.2014, wrote to the IAF record oﬃce, 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
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 ﬁndings of the Release Medical Board and agreed
with the sanctioned disability pension. Based on the ﬁndings of the medical
boards, the appellant was sent to INHS, Asvini Mumbai, for his further
medical classiﬁcation, 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 certiﬁed
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
certiﬁcate. That was denied to him by a letter dated 14.12.20166, which stated
that no such provision exists for issuance of printed disability certiﬁcate

3 Letter No RO/3305/3/Med.
4 Opinion of Specialist dated 16.12.2015
5 ApplicaƟon dated 26.04.2016.
6 Vide Air HQ/99798/1/741570/DAV(DP/RMB).
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING 611
OFFICER & ORS. [S. RAVINDRA BHAT, J.]

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 certiﬁed that as per records held with
this oﬃce, the disability “Immune Surveillance (HIV)” got aﬄicted
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 certiﬁcate 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”). Dissatisﬁed 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 eﬀorts 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 ﬁndings 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 ﬁndings 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.
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 ﬁndings 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.”
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING 613
OFFICER & ORS. [S. RAVINDRA BHAT, J.]

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 ﬁled 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
oﬃcers.
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 certiﬁcate, 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 ﬁndings 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.
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.
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING 615
OFFICER & ORS. [S. RAVINDRA BHAT, J.]

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 signiﬁcant 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 speciﬁc
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 [..]
616 SUPREME COURT REPORTS [2023] 14 S.C.R.

23. Diﬀerent medical opinions16, medical board proceedings17, and
oﬃcial 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 oﬃcer or authority
exercising any power or discharging any function under this Act such information as
is required by such oﬃcer or authority for carrying out the purposes of this Act.
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING 617
OFFICER & ORS. [S. RAVINDRA BHAT, J.]

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 oﬃcers 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 certiﬁcates 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 aﬃdavit is signed by Capt. Alokesh Roy, oﬃcer
In-charge of the Legal cell, Army Hospital (R & R) Delhi Cantt, claiming to
be ﬁled 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 certiﬁcates 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. UOI & Ors.24 Arguing further
on biases, the appellant turned the Court’s attention to the fact that one of
the members of the Commission bench was a retired Defence Secretary.

22 [1995) SUPP. 1 S.C.R 389.
23 [2008] 12 S.C.R. 54.
24 [1970] 1 S.C.R. 457.
618 SUPREME COURT REPORTS [2023] 14 S.C.R.

28. It was further argued that due to him being HIV positive, the
appellant was deemed unﬁt for re-employment and extension of service.
Consequently, he was discharged from permanent service in the Indian Air
Force. In fact, he was later selected by the Food Corporation of India. But,
due to his HIV positive status, the Food Corporation of India rejected the
appellant on medical grounds. Additionally, his medical condition led to
divorce and the loss of family support.
29. The appellant relied on Chapter 3 of the National Guidelines for
HIV testing to assert that antibody detection tests are not eﬀective during
the window period when antibodies are not yet detectable. Additionally, the
appellant referred to Guidelines on HIV Testing (March 2007) published
by the National AIDS Control Organisation (hereafter “NACO”), which
states that the disease’s rate of progression depends on viral characteristics
and host factors, ranging from 1 year to more than 15-20 years. NACO has
also certiﬁed that around 5% of HIV-infected individuals, known as “long
term non-progressors” (hereafter, “LTNPs”), do not experience disease
progression for an extended period. It was urged that the appellant’s case fell
under such a category. To further substantiate this submission, the appellant
cited a judgment from the Supreme Court of New Jersey in the case of State
ex rel. J. G., N. S. & J. T25. wherein, the court observed that a negative HIV
test result for the accused does not necessarily mean they are not infected
with HIV. It could be due to the “window period”, during which HIV tests
may provide inaccurate results.
30. It was argued that respondents had, through various letters26
admitted that the appellant qualiﬁes as a consumer under Section 2 (l) (d)
(ii) of the Consumer Protection Act, 1986, (hereafter “CPA 1986”) as the
appellant, being a permanent employee of the IAF, availed medical services
from the respondents as deﬁned under the same section. The appellant placed
reliance on the judgments of this court, including M/S. Spring Meadows
Hospital & Anr. versus Harjol Ahluwalia Through K.S. Ahluwalia & Anr.

25 Decided on September 25, 1997.
26 Vide Letter No. SWAC/ 3451 / 1103 / PIO, dated 20th Feb 2017; vide Letter No.
SWAC / 3451 / 1103 / PIO, dated 14.03.2017; vide Letter No. Air HQ / 23401/2O4/ 4
/ 11245 /E / PS, dated 26.04.2017; vide Letter No. DCA / Pen -III / Court Case /2018,
Dated 07.01.2019.
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING 619
OFFICER & ORS. [S. RAVINDRA BHAT, J.]

(hereafter, “Spring Meadows”)27; Kishore Lal vs. Chairman, Employee State
Insurance Corporation (hereafter, “Kishore Lal”)28; Laxman Thamappa
Kotgiri v G. M., Central Railway (hereafter, Laxman Thamappa Kotgiri”)29;
and Savita Garg vs. The Director, National Heart Institute30, to further
substantiate his submission.
31.The amici and the appellant urged the court that the facts show that
there was negligence and reckless disregard of the ordinary care expected
of the medical experts, when the blood transfusion took place. It was
contended that the court should grant all the reliefs available in law, such
as monetary compensation towards loss of income, till the date of normal
superannuation, taking into account that he would have been in a position
to retire as a Junior Commissioned Oﬃcer, at the age of at least 58 years.
At the very least, his services as non-commissioned personnel would have
been ordinarily extended for another seven years. The amici submitted
that the present condition of the appellant is fraught as his condition has
worsened and he is almost in a state of dependency as he has to rely on the
assistance of a support person, cannot move about freely and is frequently
fatigued. It was further submitted that the transfusion, without seeking
informed consent, without ensuring observance of minimum safeguards
and later, stonewalling the appellant, denying access to his medical records,
and even seeking to deny their liability, by holding a CoI, - the reason for
whose setting up was only to discount previous medical certiﬁcation- and
the insinuations aimed at the appellant, caused him immense mental agony,
for which suitable and deterrent compensation is warranted. It was also
submitted that the attitude and behaviour of the respondents in providing
treatment to the appellant, which he is entitled to in accordance with the
applicable rules, as a person discharged on medical grounds, and certiﬁed
to a certain extent of disability, has eroded his conﬁdence. Therefore, the
court should issue suitable directions for his continued medical treatment,
in an alternative manner, or suitably compensate him. It was highlighted
that the response and indiﬀerence of the respondents has caused intense

27 [1998] 2 S.C.R. 428.
28 [2007] 6 S.C.R. 139.
29 (2007) 4 SCC 596.
30 [2004] SUPP. 5 S.C.R. 359.
620 SUPREME COURT REPORTS [2023] 14 S.C.R.

mental agony to the appellant, which should be separately compensated.
The amici also highlighted that the appellant’s eﬀort to secure employment
has turned to naught, because though he was almost selected for a post,
the future employer, i.e., the Food Corporation of India (FCI), rejected his
application, when it became aware that he was HIV positive. A response to
the appellant’s RTI query, given by the FCI on 17.02.2018 in this context
was placed on the record.
V. Submissions on Behalf of Respondents
32. Learned counsel appearing for the Indian Army and IAF, Additional
Solicitor General – Mr. Vikramjit Banerjee (hereafter “ASG”) submitted
that the appellant failed to prove medical negligence attributable to the
respondents and that no medical report submitted on record establishes
negligence on their part.
33. It was submitted by the ASG that the appellant is not a ‘consumer’
in terms of Section 2(1)(d)31 of the CPA 1986, he was entitled to, and availed
medical services from armed forces hospitals free of cost and the services
provided by the armed forces hospital is not a service under the Section 2(1)
(o)32 of the CPA 1986. Such services are provided without any consideration.

31 (d) “consumer” means any person who,--
(i) buys any goods for a consideration which has been paid or promised or partly paid
and partly promised, or under any system of deferred payment and includes any user
of such goods other than the person who buys such goods for consideration paid or
promised or partly paid or partly promised, or under any system of deferred payment,
when such use is made with the approval of such person, but does not include a person
who obtains such goods for resale or for any commercial purpose; or
(ii) [hires or avails of] any services for a consideration which has been paid or
promised or partly paid and partly promised, or under any system of deferred payment
and includes any beneﬁciary of such services other than the person who [hires or
avails of] the services for consideration paid or promised, or partly paid and partly
promised, or under any system of deferred payment, when such services are availed
of with the approval of the ﬁrst mentioned person [but does not include a person who
avails of such services for any commercial purpose];
[Explanation.--For the purposes of this clause, “commercial purpose” does not
include use by a person of goods bought and used by him and services availed by him
exclusively for the purposes of earning his livelihood by means of self-employment.]
32 (o) “service” means service of any description which is made available to potential
[users and includes, but not limited to, the provision of] facilities in connection with
banking, ﬁnancing insurance, transport, processing, supply of electrical or other
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING 621
OFFICER & ORS. [S. RAVINDRA BHAT, J.]

Reliance was placed on following observations of this court’s judgment in
Nivedita Singh v Dr Asha Bharti33:
“6. A reading of the above para shows that a medical oﬃcer who
is employed in a hospital renders service on behalf of the hospital
administration and if the service as rendered by the Hospital does
not fall within the ambit of 2(1)(o) of the Act being free of charge, the
same service cannot be treated as service Under Section 2(1)(o) for
the reasons that it has been rendered by medical oﬃcer in the hospital
who receives salary for the employment in the hospital. It was thus
concluded that the services rendered by employee-medical oﬃcer to
such a person would therefore continue to be service rendered free of
charge and would be outside the purview of Section 2(1)(o) of the Act.”
34. The learned ASG relied on the judgment of Jacob Mathew v State
of Punjab34 and Martin F D’Souza v Mohd Ishfaq (hereafter, “Martin F.
D’Souza”)35 to contend that in cases of medical negligence, courts must
refer the matter to a competent doctor or a specialized committee in the
relevant ﬁeld and only on the recommendation of such expert giving prima
facie ﬁnding of medical negligence that doctor should be summoned. And
in the present case, the appellant has not produced any expert opinion to
substantiate his claim of medical negligence.
35. Reliance was also placed on the medical report dated 05.03.2014,
issued when the appellant was admitted to the hospital facility at MH
Ahmedabad, owing to Pneumonia. This medical report stated that the
appellant was detected HIV negative, which shows that the appellant was
HIV negative for a period of 12 years (i.e., from July 2002 to March 2014).
36. It was further submitted that IMC Professional Conduct Regulations
requires consent only for the purpose of surgical treatment, and blood
transfusion not being a surgical treatment, consent of the appellant is not

energy, board or lodging or both, [housing construction,] entertainment, amusement
or the purveying of news or other information, but does not include the rendering of
any service free of charge or under a contract of personal service.”
33 2021 SCC OnLine SC 3165.
34 [2005] Supp 2 SCR 307; (2005) 6 SCC 1.
35 [2009] 3 SCR 273; (2009) 3 SCC 1.
622 SUPREME COURT REPORTS [2023] 14 S.C.R.

mandatory and at no point of time treatment was forced upon the appellant.
It was further argued that Medical Boards are not the primary source of
evidence in relation to the detection of HIV infection disease, and the test
report dated 05.03.2014 must be considered as primary evidence.
37. Learned ASG further submitted that the appellant failed to show
any connection between the transfusion of blood and HIV positive status
of the appellant. It was argued that the ﬁndings of the Medical Board as to
the disability of the appellant being attributed to service was solely for the
purpose of granting disability pension and the same ﬁndings cannot be used
to infer negligence on the part of the respondent authorities. Further, the
CoI too, after examining all witnesses and their statements and evidence,
observed that not only the documents pertaining to blood transfusion and
screening of blood were not available with the 171 MH but also observed
that blood was properly screened prior to being transfused to the appellant.
38. It was further argued that the appellant failed to show any causation
between the blood transfusion and his eventually being infected with the
virus. There was a ‘novus actus interveniens’ that led to the appellant
being infected with the HIV virus. To substantiate this, the ASG urged that
even when the appellant was admitted to the hospital on 31.04.2002 (i.e.,
before blood transfusion), he showed symptoms of ‘macrocytic anaemia’
and even in February 2014, when he was admitted to the Military Hospital,
Ahmedabad, symptoms of ‘macrocytic anemia’ were present. Relying on
research papers in the ﬁeld36, it was submitted that anemia is the most
frequent and common abnormality associated with HIV, which the appellant
had in 2002, even before he was admitted to the hospital for blood transfusion
and thus, it cannot be ascertained with conviction that appellant acquired
HIV due to blood transfusion and not from any other source.
39. It was further submitted that no adverse inference against the
respondent can be drawn from the non-availability of the appellant’s medical
reports with the respondents as the same have been weeded out. Additionally,

36 Including – “Haematological changes in HIV infection with correlation to CD4
cell count” published in Australasian Medical Journal and a Lancet Article titled
“Prevalence of anemia among people living with HIV: A systematic review and meta
analysis”.
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING 623
OFFICER & ORS. [S. RAVINDRA BHAT, J.]

the respondents are not required to maintain the appellant’s medical record
beyond a period of three years as per IMC Professional Conduct Regulations
and there is no obligation to preserve the said medical documents beyond this
period specially when 171, Military Hospital itself is a temporary hospital.
Regulation 1.3 of the IMC Professional Conduct Regulations reads as:
“Section 1.3 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 and attached as Appendix 3.”
40. Learned counsel also placed reliance on communication dated
24.05.201637, wherein legal opinion of the case was provided by Command
Judge Advocate (CJA). The opinion states that the appellant is wrong in
blaming the organization for his divorce as the Family Court passed the
divorce decree with the mutual consent of both the parties under Section
13B of the Hindu Marriage Act, 1955 and the same cannot be attributed to
the respondent authorities.
41. Learned ASG further contended that the consumer complaint ﬁled
by the Complaint before the Commission is grossly time barred and he has
failed to demonstrate any suﬃcient cause for condoning the delay. Impugning
the bona-ﬁdes of the appellant, it was argued that he had discovered HIV
infection in the year 2014 itself but approached the Commission only in 2017
and the appellant had symptoms of immunodeﬁciency during 2002 and 2014.
Yet he has attempted to conceal those facts at earlier stages. It was further
argued that it was not possible for the appellant to remain asymptomatic
for a period of 12 years after being infused with the virus specially when
an infection is transmitted through blood transfusion as in such cases, viral
load is greater and disease manifests comparatively early.
42. It was submitted that HIV can be caused because of various reasons,
such as unprotected sexual intercourse with an HIV infected person; blood
transfusion; sharing of HIV infected needles; transfer of HIV virus by

37 Forwarding of personal application 741570-B CPL AK Chauhan ADSO in Letter no.
SWAC/S1276/1/AD, dated 24.5.2016.
624 SUPREME COURT REPORTS [2023] 14 S.C.R.

infected mother to her baby before birth, or after birth, by breastfeeding.
In the facts of this case, the appellant did not establish any deﬁnite causal
relationship between infection in 2002 and his acquiring HIV positive
status in 2014 as a direct and only result of his being admitted and given
the blood transfusion in 171 MH. The records reveal that the appellant was
referred to 171 MH in 2002 as he was aﬄicted with microcytic anemia;
loss of appetite, discoloration of urine, 5 kg weight loss in 5 months, fever
and dyspepsia. When admitted in February 2014, at MH Ahmedabad, the
appellant was suﬀering from conditions such as H1N1 virus (swine ﬂu);
macrocytic anemia; subhyalodid hemorrhage. The eﬀect of transfusion in
2002 led to considerable improvement in the appellant’s overall medical
condition. It was submitted that during the CoI, the concerned pathologist
of 166 MH at the relevant time, produced records showing that two units
of B-negative blood were indented to 171 MH on 12.01.2002. No records
showing blood units given to 171 MH for June- July 2002 were available.
Therefore, at best, there was no evidence which could establish to any extent
that HIV infected blood was transfused. In these circumstances, there is no
question of negligence by the respondents or vicarious liability for their
negligence of the IAF or the Indian Army.
VI. ANALYSIS
(i) Jurisdiction
(a) Is appellant’s case covered under CPA 1986:
43. The ﬁrst question that the court has to consider is whether the
appellant’s case is under the CPA 1986. The respondents contend that the
appellant cannot claim to be a consumer, and the medical facilities extended
to him, through the IAF and army hospitals, do not fall within the ambit
of the CPA 1986, because all armed force personnel are required, as part
of their duties, to show ﬁtness, and are subjected to periodic mandatory
medical tests. The terms and conditions of engagement of armed forces
personnel, and the army/IAF ecosystem are geared to ensure the ﬁtness and
sound medical shape of its personnel. Therefore, even the doctors and other
personnel within the medical system are subjected to army/IAF discipline
and rules and regulations. In these circumstances, Army hospitals and similar
facilities cannot be considered as covered by CPA 1986.
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING 625
OFFICER & ORS. [S. RAVINDRA BHAT, J.]

44. It would be useful to extract the relevant regulation (applicable to
Indian army personnel), which is contained in Regulation 173 of the Pension
Regulations for the Army, 1973 (hereafter “Army Pension Regulations”):
“173. Primary Conditions for the grant of Disability Pension
Unless otherwise speciﬁcally provided a disability pension consisting
of service element and disability element may be granted to an
individual who is invalided out of service on account of a disability
which is attributable to or aggravated by military service in non-battle
casualty and is assessed at 20 per cent or over.”
45. Chapter III of the IAF Pension Regulations, 1961, applies to airmen,
i.e., non-commissioned personnel and oﬃcers, such as the appellant, which
spells out its application by Rule 101. Rule 111 renders all service, rendered
up to the date of discharge of the airman, eligible for counting of pensionary
service. Rule 153 reads as follows:
“153. Unless otherwise speciﬁcally provided, a disability pension may
be granted to an individual who is invalided from service on account
of a disability which is attributable to or aggravated by air force
service and is assessed at 20 per cent or over. The question whether
a disability is attributable to or aggravated by air force service shall
be determined under the regulations in Appendix II”
Appendix II deals with the principles to be applied for deciding
disability.
46. In Pani Ram vs. Union of India38, this court, while upsetting a
decision of the Armed Forces Tribunal rejecting a claim for disability
pension, for an army personnel, held, inter alia, on a reading of the Army
Pension Regulations that:
“18. The perusal thereof will reveal that an individual who is invalided
out of service on account of disability, which is attributable or
aggravated by Military Service in non-battle casualty and is assessed
20% or more, would be entitled to disability pension. The Respondents
are not in a position to point out any Rules or Regulations, which can

38 2021 (9) SCR 1024.
626 SUPREME COURT REPORTS [2023] 14 S.C.R.

be said to be inconsistent with Regulation No. 292 or 173, neither has
any other Regulation been pointed out, which deals with the terms and
conditions of service of ETF.”
Further, the court had remarked, poignantly that:
“23. As held by this Court, a Right to Equality guaranteed Under
Article 14 of the Constitution of India would also apply to a man who
has no choice or rather no meaningful choice, but to give his assent
to a contract or to sign on the dotted line in a prescribed or standard
form or to accept a set of Rules as part of the contract, however unfair,
unreasonable and unconscionable a Clause in that contract or form or
Rules may be. We ﬁnd that the said observations rightly apply to the
facts of the present case. Can it be said that the mighty Union of India
and an ordinary soldier, who having fought for the country and retired
from Regular Army, seeking re-employment in the Territorial Army,
have an equal bargaining power. We are therefore of the considered
view that the reliance placed on the said document would also be of
no assistance to the case of the Respondents.”
47. Certain decisions of this court, in this regard, are illuminating.
Savita Garg (Supra) dealt with this aspect, and referred to the previous
ruling in Indian Medical Assn. v. V.P. Shantha (hereinafter, “V.P. Shantha”)39:
“This Court has dealt with all aspects of the medical profession from
every angle and has come to the conclusion that the doctors or the
institutes owe a duty to the patients and they cannot get away in case of
lack of care to the patients. Their Lordships have gone to the extent that
even if the doctors are rendering services free of charge to the patients
in government hospitals, the provisions of the Consumer Protection Act
will apply since the expenses of running the said hospitals are met by
appropriation from the Consolidated Fund which is raised from taxes
paid by the taxpayers. Their Lordships have dealt with the deﬁnition
of “service” given in Section 2(1)(o) of the Consumer Protection Act,
1986, and have observed as follows:

39 1995 Supp (5) SCR 110.
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING 627
OFFICER & ORS. [S. RAVINDRA BHAT, J.]

“The services rendered free of charge to patients by doctors/hospitals,
whether non-government or government, who render free service to
poor patients but charge fees for services rendered to other patients
would, even though it is free, not be excluded from deﬁnition of
service in Section 2(1)(o). The Act seeks to protect the interests
of consumers as a class. To hold otherwise would mean that the
protection of the Act would be available to only those who can aﬀord
to pay and such protection would be denied to those who cannot so
aﬀord, though they are the people who need the protection more. It
is diﬃcult to conceive that the legislature intended to achieve such a
result. Another consequence of adopting a construction, which would
restrict the protection of the Act to persons who can aﬀord to pay
for the services availed by them and deny such protection to those
who are not in a position to pay for such services, would be that the
standard and quality of services rendered at an establishment would
cease to be uniform. It would be of a higher standard and of better
quality for persons who are in a position to pay for such service
while the standard and quality of such service would be inferior for
persons who cannot aﬀord to pay for such service and who avail
the service without payment. Such a consequence would defeat the
object of the Act. All persons who avail the services by doctors and
hospitals who give free service to poor patients but charge fee for
others, are required to be treated on the same footing irrespective
of the fact that some of them pay for the service and others avail
the same free of charge. Most of the doctors and hospitals work on
commercial lines and the expenses incurred for providing services
free of charge to patients who are not in a position to bear the charges
are met out of the income earned by such doctors and hospitals from
services rendered to paying patients. The government hospitals may
not be commercial in that sense but on the overall consideration of
the objectives and the scheme of the Act it would not be possible to
treat the government hospitals diﬀerently. In such a situation the
persons belonging to ‘poor class’ who are provided services free of
charge are the beneﬁciaries of the service which is hired or availed of
by the ‘paying class’. Service rendered by the doctors and hospitals
who render free service to poor patients and charge fees for others
628 SUPREME COURT REPORTS [2023] 14 S.C.R.

irrespective of the fact that part of the service is rendered free of
charge, would nevertheless fall within the ambit of the expression
‘service’ as deﬁned in Section 2(1)(o) of the Act.”
48. Laxman Thamappa Kotgiri (supra) was a case where a railway
employee was aggrieved by the negligent treatment of his wife, resulting
in her death. His complaint was rejected, on the premise that the railway
hospital where the treatment was given, was a part of his condition of
service wherein he and his dependents were provided medical advice and
treatment, free of charge. This court upset those ﬁndings and held the
complaint maintainable:
“6. There is no dispute that the hospital in question has been set up for
the purpose of granting medical treatment to the railway employees
and their dependants. Apart from the nominal charges which are taken
from such an employee, this facility is part of the service conditions
of the railway employees. V.P. Shantha case [(1995) 6 SCC 651] has
made a distinction between non-governmental hospital/nursing home
where no charge whatsoever was made from any person availing of
the service and all patients are given free service [vide para 55(6) at
p. 681] and services rendered at government hospital/health centre/
dispensary where no charge whatsoever is made from any person
availing of the services and all patients are given free service [vide para
55(9)] on the one hand and service rendered to an employee and his
family members by a medical practitioner or a hospital/nursing home
which are given as part of the conditions of service to the employee
and where the employer bears expenses of the medical treatment of
the employee and his family members [para 55(12)] on the other. In
the ﬁrst two circumstances, it would not (sic) be free service within
the deﬁnition of Section 2(1)(o) of the Act. In the third circumstance
it would (sic not) be.
7. Since it is not in dispute that the medical treatment in the said
hospital is given to employees like the appellant and his family
members as part of the conditions of service of the appellant and
that the hospital is run and subsidised by the appellant’s employer,
namely, the Union of India, the appellant’s case would fall within the
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING 629
OFFICER & ORS. [S. RAVINDRA BHAT, J.]

parameters laid down in para 55(12) of the judgment in V.P. Shantha
case [(1995) 6 SCC 651] and not within the parameters of either para
55(6) or para 55(9) of the said case.
8. It is true that the decision in State of Orissa v. Divisional Manager,
LIC [(1996) 8 SCC 655] relied upon by the learned counsel for
the respondents appears to hold to the contrary. However, since
the decision is that of a smaller Bench and the decision in V.P.
Shantha [(1995) 6 SCC 651] case was rendered by a larger Bench,
we are of the opinion that it is open to this Court to follow the larger
Bench which we will accordingly do.”
Even in the case of employees who had contributed in part, the other
contributions being from employers, under the Employees State Insurance
Corporation scheme, this court had held that the services rendered by ESI
hospitals were not gratuitous and that the ESI doctors fell within the ambit
of the CPA 1986, in Kishore Lal (supra):
“13. On a plain reading of the aforesaid provisions of the ESI Act, it
is apparent that the Corporation is required to maintain and establish
the hospitals and dispensaries and to provide medical and surgical
services. Service rendered in the hospital to the insured person or his
family members for medical treatment is not free, in the sense that
the expense incurred for the service rendered in the hospital would
be borne from the contributions made to the insurance scheme by the
employer and the employee and, therefore, the principle enunciated
in Conclusion (11) in para 55 in Indian Medical Assn. [(1995) 6
SCC 651] will squarely apply to the facts of the present case, where
the appellant has availed the services under the insurance policy
which is compulsory under the statute. Wherever the charges for
medical treatment are borne under the insurance policy, it would be a
service rendered within the ambit of Section 2(1)(o) of the Consumer
Protection Act. It cannot be said to be a free service rendered by the
ESI hospital/dispensary.
14. The service rendered by the medical practitioners of hospitals/
nursing homes run by ESI Corporation cannot be regarded as a service
rendered free of charge. The person availing of such service under
an insurance scheme of medical care, whereunder the charges for
630 SUPREME COURT REPORTS [2023] 14 S.C.R.

consultation, diagnosis and medical treatment are borne by the insurer,
such service would fall within the ambit of “service” as deﬁned in
Section 2(1)(o) of the Consumer Protection Act. We are of the opinion
that the service provided by the ESI hospital/dispensary falls within
the ambit of “service” as deﬁned in Section 2(1)(o) of the Consumer
Protection Act. ESI scheme is an insurance scheme and it contributes
for the service rendered by the ESI hospitals/dispensaries, of medical
care in its hospitals/dispensaries, and as such service given in the ESI
hospitals/dispensaries to a member of the Scheme or his family cannot
be treated as gratuitous.”
49. Section 1 (4) of CPA 1986, (which was in force when the appellant
preferred his complaint) reads as follows:
“1. Short title, extent, commencement and applications:
(4) Save as otherwise expressly provided by the Central Government
by notiﬁcations, this Act shall apply to all goods and services.”
50. Earlier, keeping in line with the reasoning that furthered the
objectives of the CPA 1986, spelt out in V.P. Shantha, this court had rejected,
in Regional Provident Fund Commissioner v Shiv Kumar Joshi40:
“We cannot accept the argument that the Regional Provident Fund
Commissioner, being Central Government, cannot be held to be
rendering “service” within the meaning and scheme of the Act. The
Regional Provident Fund Commissioner, under the Act and the Scheme
discharges statutory functions for running the Scheme. It has not, in
any way, been delegated with the sovereign powers of the State so as
to hold it as a Central Government, being not the authority rendering
the “service” under the Act. The Commissioner is a separate and
distinct entity. It cannot legally claim that the facilities provided by the
“Scheme” were not “service” or that the beneﬁts under the Scheme
being provided were free of charge. The deﬁnition of “consumer”
under the Act includes not only the person who hires the “services” for
consideration but also the beneﬁciary, for whose beneﬁt such services
are hired. Even if it is held that administrative charges are paid by

40 1999 (5) Suppl. SCR 294.
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING 631
OFFICER & ORS. [S. RAVINDRA BHAT, J.]

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 beneﬁt of employees who would be
treated as beneﬁciaries within the meaning of that word used in the
deﬁnition of “consumer”.
51. In Haryana Urban Development Authority v Vidya Chetal41, this
court, speaking through a three-judge bench, held that:
“..if the statutory authority, other than the core sovereign duties, is
providing service, which is encompassed under the Act, then, unless
any statute exempts, or provides for immunity, for deﬁciency in service,
or speciﬁcally provides for an alternative forum, the consumer forums
would continue to have the jurisdiction to deal with the same. We need
to caution against over-inclusivity and the tribunals need to satisfy
the ingredients under Consumer Protection Laws, before exercising
the jurisdiction.”
52. In the latest decision, Joint Labour Commissioner v Kesar Lal42, this
court, dealt with the issue of whether a construction worker registered under
the Building and Other Construction Workers (Regulation of Employment
and Conditions of Service) Act, 1996 and a beneﬁciary of the scheme made
under the rules framed under the enactment, is a ‘consumer’ within the
meaning of Section 2(d) of the CPA 1986. The court rejected the statutory
authority’s appeal, after reviewing a host of precedents:
“14. [..] Public authorities such as the appellants who have been
constituted under an enactment of Parliament are entrusted with a
solemn duty of providing welfare services to registered workers. The
workers who are registered with the Board make contributions on
the basis of which they are entitled to avail of the services provided
in terms of the schemes notiﬁed by the Board. Public accountability
is a signiﬁcant consideration which underlies the provisions of the
Consumer Protection Act 1986. The evolution of jurisprudence in

41 2019 (12) SCR 516.
42 2020 (5) SCR 176.
632 SUPREME COURT REPORTS [2023] 14 S.C.R.

relation to the enactment reﬂects the need to ensure a sense of public
accountability by allowing consumers a redressal in the context of the
discharge of non-sovereign functions which are not rendered free of
charge. This test is duly met in the present case.”
(b) Alternative basis for exercising jurisdiction:
53. There are several precedents of this court, which justify the exercise
of jurisdiction under Article 32 of the Constitution. The most celebrated
decision is that of Nilabati Behara v State of Orissa43, where the jurisdiction
of the court was highlighted in the following terms:
“‘a claim in public law for compensation’ for contravention of
human rights and fundamental freedoms, the protection of which
is guaranteed in the Constitution, is an acknowledged remedy for
enforcement and protection of such rights, and such a claim based on
strict liability made by resorting to a constitutional remedy provided for
the enforcement of a fundamental right is ‘distinct from, and in addition
to, the remedy in private law for damages for the tort’ resulting from
the contravention of the fundamental right. The defence of sovereign
immunity being inapplicable, and alien to the concept of guarantee of
fundamental rights, there can be no question of such a defence being
available in the constitutional remedy. It is this principle which justiﬁes
award of monetary compensation for contravention of fundamental
rights guaranteed by the Constitution, when that is the only practicable
mode of redress available for the contravention made by the State or
its servants in the purported exercise of their powers, and enforcement
of the fundamental right is claimed by resort to the remedy in public
law under the Constitution by recourse to Articles 32 and 226 of the
Constitution.”
54. This court declared the importance of reaching out to injustice
and using its powers, including under Article 142 of the Constitution, in the
following terms, in Delhi Development Authority v. Skipper Construction
Co. (P) Ltd44:

43 1993 (2) SCC 746.
44 1996 (2) Suppl. SCR 295.
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING 633
OFFICER & ORS. [S. RAVINDRA BHAT, J.]

“It is conceived to meet situations which cannot be eﬀectively and
appropriately tackled by the existing provisions of law. As a matter
of fact, we think it advisable to leave this power undeﬁned and
uncatalogued so that it remains elastic enough to be moulded to suit
the given situation. The very fact that this power is conferred only
upon this Court, and on no one else, is itself an assurance that it will
be used with due restraint and circumspection, keeping in view the
ultimate object of doing complete justice between the parties.”
Earlier, in Anadi Mukta Sadguru Shree Muktajee Vandas Swami
Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani45, this Court
examined the development of the law of mandamus and held as under:
“[…] mandamus cannot be denied on the ground that the duty
to be enforced is not imposed by the statute. Commenting on the
development of this law, Professor de Smith states: ‘To be enforceable
by mandamus a public duty does not necessarily have to be one imposed
by statute. It may be suﬃcient for the duty to have been imposed by
charter, common law, custom or even contract.’ (Judicial Review of
Administrative Action, 4th Edn., p. 540). We share this view. The judicial
control over the fast expanding maze of bodies aﬀecting the rights of
the people should not be put into watertight compartment. It should
remain ﬂexible to meet the requirements of variable circumstances.
Mandamus is a very wide remedy which must be easily available ‘to
reach injustice wherever it is found’. Technicalities should not come
in the way of granting that relief under Article 226. We, therefore,
reject the contention urged for the appellants on the maintainability
of the writ petition.”
This court, very aptly expressed, in the larger Bench decision,
reported as P.S.R. Sadhanantham v. Arunachalam46, the jurisdiction of the
court, to entertain a criminal appeal by the informant, where the accused
was acquitted, and no appeal had been entertained by the state (without
any statutory basis or locus for such complainant/petitioner) alluding to
considerations of justice:

45 1989 (2) SCR 697.
46 1980 (2) SCR 873.
634 SUPREME COURT REPORTS [2023] 14 S.C.R.

“3. The jural reach and plural range of that judicial process to
remove injustice in a given society is a sure index of the versatile
genius of law-inaction as a delivery system of social justice. By
this standard, our constitutional order vests in the summit Court
of jurisdiction to do justice, at once omnipresent and omnipotent
but controlled and guided by that reﬁned yet ﬂexible censor called
judicial discretion. This nidus of power and process, which master-
minds the broad observance throughout the Republic of justice
according to law, is Article 136.”
55. This court is conscious that if there are any statutory conditions
or limitations, its exercise of Article 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.
(c) Can the court consider questions of fact:
56. This aspect, i.e., the court’s ability and jurisdiction to appreciate
facts, really is uncontestable; even in writ proceedings, the so-called “hands
oﬀ” bogey of “disputed questions of fact” which ordinarily constrain the
courts, under Articles 32 and 226 from exercising jurisdiction, are to be
seen in the context of the facts of each case. No doubt, usually the courts
would not primarily exercise jurisdiction to enter into the arena of disputed
facts. Yet, on occasions, the court has underlined that such an approach is
dictated by considerations of convenience, rather than a rigid rule calling for
universal application. Therefore, in Gunwant Kaur v Municipal Committee
Bhatinda (hereafter, “Gunwant Kaur”)47, this court held:
“The High Court has jurisdiction to determine questions of fact, even
if they are in dispute and the present, in our judgment, is a case in
which in the interests of both the parties the High Court should have
entertained the petition and called for an aﬃdavit-in-reply from the
respondents, and should have proceeded to try the petition instead of
relegating the appellants to a separate suit.”

47 1969 (3) SCC 769.
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING 635
OFFICER & ORS. [S. RAVINDRA BHAT, J.]

57. This court applied the ratio in Gunwant Kaur, in ABL International
Ltd. & Anr. V Export Credit Guarantee Corporation of India Ltd. & Ors. 48:
“19. Therefore, it is clear from the above enunciation of law that merely
because one of the parties to the litigation raises a dispute in regard to
the facts of the case, the court entertaining such petition under Article
226 of the Constitution is not always bound to relegate the parties to a
suit. In the above case of Gunwant Kaur [(1969) 3 SCC 769] this Court
even went to the extent of holding that in a writ petition, if the facts
require, even oral evidence can be taken. This clearly shows that in an
appropriate case, the writ court has the jurisdiction to entertain a writ
petition involving disputed questions of fact and there is no absolute
bar for entertaining a writ petition even if the same arises out of a
contractual obligation and/or involves some disputed questions of fact”
The ratio of these decisions was also followed in Unitech v Telangana
State Industrial and Infrastructural Development Corporation49.
58. In the light of these decisions, this court holds that 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 under Articles 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 aﬃdavit
of the parties.
(ii) Facts as appearing from the record
59. The blood transfusion in the present case, took place on 10.07.2002.
The appellant was admitted to 171 MH on medical advice, in the third week
of June 2002; after his transfusion, his overall condition improved; he was
admitted as a case of anorexia with a low Hb count of Hb 6.3 % g; which
improved on the date of his discharge (31-07-2002); he was found ﬁt for
discharge. When he felt discomfort, he was admitted to a Military Hospital

48 (2004) 3 SCC 553.
49 2021 (1) SCR 1064.
636 SUPREME COURT REPORTS [2023] 14 S.C.R.

Ahmedabad; the blood test did not indicate abnormality. Early, in the year
2014, he was admitted to the Military Hospital, Ahmedabad, on 14.03.2014
and diagnosed with “Acute Gastroenteritis” and “Sceptic shock”. The
ultrasound report indicated “Hepatic disease”. The blood report did not
indicate any abnormality, other than an unusual hemoglobin level (9.3g%).
He was later required to report to INHS Ashvini, and declared ﬁt for travel
in the entitled class, on diagnosis of “Sepsis Secondary to Pneumonia” and
“Azotemia” by medical advice issued by Military Hospital Ahmedabad,
on 19.05.2014. He was admitted to the naval ship INHS Ashvini, when on
21.05.2014, he was detected for the ﬁrst time, to be infected with Positive
HIV-1 antibodies, as a result of the ELISA test. He was prescribed medication;
he started taking treatment. The medical board proceedings dated 11.06.2014
detected disability; however, it stated that the “disability is not attributable
to service”. The next medical board proceeding certiﬁcate dated 12.12.2014
described the appellant as suﬀering from a disability which was described as
having been caused by “one unit of blood transfusion on 10.7.2002 in 171
MH.” Against the column whether the disability was attributable to service,
the certiﬁcate stated that “yes. One unit of blood transfusion on 10.7.2002
in 171 MH”. By the medical board proceedings dated 24.06.2015, the cause
of the appellant’s condition was described as (Col. 17) which was caused by
“one unit of blood-transfusion on 10 Jul 2002 in 171 MH”. The opinion of
the Surgeon Commander dated 16.12.2015 was that the petitioner was a “39
years old serving air warrior is an old case of above-mentioned disability in
LMC A4G4 (P) w.e.f 24 Jun 15 and due on 29 May 15. Individual reported.
To SMC for 06 monthly review at INHS Asvini Release medical board.
Individual was admitted and transferred to INHS Asvini for the opinion of
Gastroenterologist. He was opined and recommended to be place in LMC
P3 (p). Now individual reported back to SMC for holding Release medical
board”. Based on this, and the medical record, the opinion of the board
dated 21.12.2015 was that “Disability developed due to one unit of blood
transfusion on 10 Jul 2002, 171 MH. Hence consider Attributable”. The
letter (dated 21.12.2015) indicated that the appellant was to be discharged
on 31.05.2016. This assessment was accepted by the IAF, which approved
his medical ﬁtness category and also rated his disability percentage on 22
January 2016 (by Group Capt. N.T. Manikantan), the approving authority.
The sanction of the disability element of the pension letter, dated 29.08.2017
(EX/741570 CPL Ashish Kumar Chauhan) issued by Air Headquarters
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING 637
OFFICER & ORS. [S. RAVINDRA BHAT, J.]

described the disability element sanctioned by the discharge letter, based
on the attributability found by the previous boards.
60. The learned ASG sought to attribute some sympathy, as the basis
for maintaining that the disability was attributable to service. However,
the conduct of the respondents points to entirely diﬀerent facts. Initially,
the respondents’ endeavor was to deny access to relevant information
altogether, to the appellant. His repeated RTI queries were turned down;
for quite some time, he was also denied access to his medical records. The
IAF does not appear to have communicated the discharge order, separately
to him. No doubt, he refused to sign the medical board proceedings;
however, there is nothing forthcoming on the record, to show that the IAF
delivered the discharge order, on any particular date, or communicated it
to him. The aﬃdavits of IAF also do not disclose that there was ever any
such communication.
61. In this background, it is signiﬁcant to notice some facts and
developments. The notice of the appellant’s complaint was issued by the
Commission/NCDRC on 20.06.2017. The documents placed on the record,
demonstrate and establish that the CoI was constituted in response and
an answer to the appellant’s complaint. This is clear from the letter (No.
B/76779/AK Chauhan/DGMS-5B/GC-75) dated 04.05.2018 written by the
Directorate General Medical Service, (Army Adjutant Branch) to the HQ
Western Command (Medical). After instructing the relevant oﬃcials to trace
the documents necessary to prepare the counter aﬃdavit, to the appellant’s
complaint, it was suggested that:
“In view of the above, it is requested to order a C of I under the aegis
of your HQ for the following:
(a) to bring out the detailed facts pertaining to blood transfusion done
at 171 MH in 2002
(b) To investigate and bring out the authority which provided the unit
of blood and whether the same was duly screened as per the policy/
guidelines in vogue at that time.
(c) to bring out all supporting documents pertaining to blood demand,
blood transfusion and screening of blood along with SOP/guidelines
in vogue at that time.
638 SUPREME COURT REPORTS [2023] 14 S.C.R.

(d) to investigate into the matter and pin point the lapses or negligence
if any and the individuals responsible thereto.”
62. It was in these circumstances, that the CoI was constituted. It
is an undisputed fact that though the appellant was the subject matter of
that proceeding, none of the respondents cared to involve him or inform
him about it. The proceedings scrupulously excluded him, despite the real
likelihood of an adverse consequence as the likely outcome. What is clearly
discernable from the proceedings in the CoI therefore, is that:
(a) Many of the documents, pertaining to appellant’s treatment were
denied, and repeatedly the respondents denied access to him.
However, many documents emerged- selectively, including the
admission and discharge slips signed by the treating doctor (Lt.
Col. Devika Bhat).
(b) The documents which respondents stated were missing, somehow
were traced and produced during the CoI. These included extracts
of registers, containing details of records destroyed; selective
production makes the inquiry and its conclusions suspect to say
the least.
(c) After categorically denying the existence of any records,
somehow the respondents were able to retrieve them. These
included a register containing details of the transfer of blood
units from 166 MH to 171 MH.
(d) The deposition of Col. Nijhawan admitted that the responsibility
of testing/screening blood for markers was that of 166 MH. He
also admitted that there was no document to prove that the blood
had been tested for markers. (Reply to Question 950). However,
Lt. Col Devika Bhat asserted that the blood was “duly screened
as per guidelines then in vogue: (Reply to Question No. 451).

50 Col. Nijhawan was asked – “Can you produce Case Sheet With document stating that
blood has been duly screened for markers as per policy including HIV?” and it was
replied that “No records are available”.
51 Lt Col Devika Bhat was asked – “Was the screening of blood for HIV before transfusion
dispensed with?” and she replied that –“The requisite blood was duly screened as per
existing guidelines in vogue at that time. The same may please be conﬁrmed from 171
MH.”
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING 639
OFFICER & ORS. [S. RAVINDRA BHAT, J.]

(e) The deposition of Lt. Col. Jyoti Borpujari states that 171 MH
was transferred one unit of B Negative blood on 12.01.2002;
she further deposed that there was no other record of transfer
of blood to 171 MH later, or during July 2002. She mentioned
the relevant markers to test blood. However, she nowhere stated
that such procedures were in fact used to test the blood actually
transferred to 171 MH.
63. The ﬁnal opinion of the CoI, based on the (allegedly scanty)
documentary evidence presented to it, and the testimonies of Col. Sanjay
Nijhawan, Lt. Col Devika Bhat, Lt. Col. Jyoti Borpurari (of 166 MH) is
summarized as follows, in that document:
“As per the statements of Col. Sanjay Nijhawan, (171 MH) Lt.
Col Devika Bhat, and Lt. Col. Jyoti Borpujari OIC Blood Bank
166 MH the following facts emerge:
(a) One unit of blood transfusion was given to 741 41570 B Ex-Cpl
Ashish Kumar Chauhan, at 171 MH (Samba) in July 2002 for
severe Macrocytic aneamia along with conservative treatment.
(b) No records are available at 171 MH pertaining to screening of
blood for HIV, Blood demand and Blood transfusion during the
period Jun-July 2002.
(c) No records are available at 166 MH regarding issue of blood
during the period Jun-July 2002.
(d) An SOP for ad-hoc Blood Bank was promulgated at 171 MH
(Samba) for Transfusion of blood during the ‘OP PARAKRAM’ as
171 MH was not authorised Blood bank /Pathologist during that
period. As per SOP the Blood was screened tor HIV infection at
166 MH and then issued to 171 MH Samba. 171 MH only stored
the blood being issued for Transfusion.
(e) 74141570 B Ex-Cpl Ashish Kumar Chauhan contracted HIV
in May, 2014 which may be for reasons other than blood
tansfusion.”
64. These ﬁndings were accepted. However, those conclusions were
not in fact acted upon: as is evidenced by the fact that the appellant’s
640 SUPREME COURT REPORTS [2023] 14 S.C.R.

categorization as a person discharged on account of disability attributable
to service, entitling him to pension has not been revoked or cancelled. Now,
as far as manifestation of the HIV positive condition is concerned, medical
opinions, and those of organizations such as WHO appear to be unanimous
that after the point of infection (known as Stage 1), the second phase (Stage
2) can be for a long period. At Stage 1 “the virus replicates using the body’s
CD4 T cells and spreads throughout the body. In doing so, it destroys CD4
T cells. Eventually, this process stabilizes. The immune system reduces the
number of viral particles, and levels of CD4 T cells may rise. However, the
number of these cells may not return to its original level.”52 The second
stage is described as follows:
“After the acute stage has ended — and if the person has not received
treatment — the virus remains active, reproducing at very low levels
but continuing to damage immune cells.
At this stage, there are usually no symptoms or very mild ones. This is
why doctors sometimes call stage 2 “asymptomatic HIV infection” or
“clinical latency.” The virus can still pass to others during this stage,
even if it causes no symptoms.
Without treatment, this stage can last for 10 years or more before the
person develops stage 3 HIV.”
65. The Guidelines on HIV Testing issued by Central Government53,
the Union Ministry of Health and Family Welfare, National Aids Control
Organization (NACO), March 2007 similarly describes the second phase
as the “latent phase” and “the asymptomatic stage”, a “period on average
lasts for 8-10 years.” According to those guidelines, the long-term survival
of most aﬄicted persons (80-90%) was 10 years or more, and a small
percentage (5%) “do not experience clinical progression of HIV.” Such
persons are described as “long term non-progressors (LTNPs)”. The
respondents strongly relied on the Ministry of Defence’s Guide to Military
Oﬃcers (Military Pensions), 2008, which contained a tabular chart (in

52 https://www.medicalnewstoday.com/articles/316056, HIV timeline: What are the
stages, (last accessed on 16.09.2023 at 05.17 AM).
53 Guidelines on HIV Testing issued by the Union Ministry of Health and Family Welfare,
National Aids Control Organization (NACO), 2007
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING 641
OFFICER & ORS. [S. RAVINDRA BHAT, J.]

Appendix to Chapter VI titled “INCUBATION PERIODS IN RESPECT OF
CERTAIN INFECTIOUS DISEASES”). Against the column containing HIV,
the initial “usual incubation period” was described to be 4 to 6 weeks. The
“minimum and maximum period for deciding attributability” against HIV
was “1 year”. In this court’s opinion, the guide, issued by the Ministry of
Defence cannot be conclusive; as it does not show, what was the basis for
the maximum attribution period of one year; and on the other hand, the
prevailing guidelines of the national expert body indicated entirely diﬀerent,
and nuanced seroprevalence periods, for diﬀerent kind of individuals.
Therefore, this court holds that such a guide to military oﬃcers cannot be
accepted, at least in this case, to reject the petitioner’s claim.
66. A review of the evidence and the materials on record reveals that the
appellant was transfused with one unit of blood on 10 July 2002, at the advice
of Lt. Col. Devika Bhat, who also deposed during the CoI proceedings.
There is no indication in her deposition that the appellant was informed of
the likely consequences- or even reasonable likelihood or the possibility
of contamination or infection due to the transfusion. Likewise, he was not
informed about any potential risks. By all accounts, the appellant really
had no choice because the transfusion took place under medical advice. At
some stage, the respondents argued that if the appellant so wished, he could
have opted not to go in for transfusion. That is, in the realm of theory, no
such alternative option is shown to have been made available to him, when
in fact the transfusion did take place.
(iii) The law on negligence
67. In India, medical negligence is said to have been established by
an aggrieved plaintiﬀ or complainant when it is shown that the doctor or
medical professional was in want of, or did not fulﬁl the standard of care
required of her or him, as such professional, reasonably skilled with the
science available at the relevant time. In other words, a doctor is not negligent
if what he has done would be endorsed by a responsible body of medical
opinion in the relevant speciality at the material time. This test is known
as the Bolam test54 and has gained widespread acceptance and application

54 So called, due to the case: Bolam v Friern Hospital Management Committee 1957(2)
All.ER 118.
642 SUPREME COURT REPORTS [2023] 14 S.C.R.

in Indian jurisprudence. It ﬁnds resonance in several decisions. Recently,
in Arun Kumar Mangalik v Chirayu Health and Medicare Ltd.55, this court
outlined that though Bolam has been the bulwark principle in deciding
medical (and professional negligence) cases, it must adapt and be in tune
with the pronouncements relating to Article 21 of the Constitution and the
right to health in general:
“41. Our law must take into account advances in medical science
and ensure that a patient-centric approach is adopted. The standard
of care as enunciated in the Bolam case must evolve in consonance
with its subsequent interpretation by English and Indian Courts. [..]”
68. In United Kingdom itself, the duty of care has evolved beyond the
Bolam approach; in Sidaway v Board of Governors of the Bethlem Royal
Hospital & the Maudsley Hospital56 and more signiﬁcantly, in Montgomery v
Lanarkshire Health Board57 (the latter decision drawing upon the reasoning
of the Australian High Court in Rogers v Whittaker58), the UK Supreme
Court outlined the duty of a doctor, surgeon or physician, and address the
right of a patient as follows:
“An adult person of sound mind is entitled to decide which, if any,
of the available forms of treatment to undergo, and her consent must
be obtained before treatment interfering with her bodily integrity is
undertaken. The doctor is therefore under a duty to take reasonable
care to ensure that the patient is aware of any material risks involved
in any recommended treatment, and of any reasonable alternative
or variant treatments. The test of materiality is whether, in the
circumstances of the particular case, a reasonable person in the
patient’s position would be likely to attach signiﬁcance to the risk, or
the doctor is or should reasonably be aware that the particular patient
would be likely to attach signiﬁcance to it.”
69. In the present case, what was the duty of care of the treating
professional? Whilst this court cannot be oblivious of the fact that the times

55 [2019] 3 SCR 281.
56 [1985] AC 871.
57 2015 UKSC 11.
58 1992 175 CLR 479.
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING 643
OFFICER & ORS. [S. RAVINDRA BHAT, J.]

during which the incident occurred were fraught in the sense that a warlike
situation prevailed at the border, at the same time, it cannot also ignore,
or be blind to certain realities. These are ﬁrstly that nothing was shown on
the record to establish that 171 MH was licensed, even as an ad hoc blood
bank. Secondly, there is no material on record as to whether the nature of
equipment available at 171 MH for storing blood and blood products was
in accordance with the standards and guidelines prevailing then, in 2002.
Thirdly, during the testimony of witnesses i.e., before the CoI, 171 MH and
166 MH, there was no speciﬁc mention about what kind of markers were
used to determine whether the transfused blood was in fact safe. Fourthly,
apart from mentioning of the guidelines by the concerned doctors, there is
nothing on record to show that such guidelines were, in fact, adhered to
when the testing as well as the transfusion took place. Fifthly, there is no
evidence in the form of deposition by the oﬃcer in charge of 166 MH, Lt
Col Jyoti Borpujari to rule out the possibility of contaminated blood-which
was in fact sent to 171 MH had taken place.
70. In the opinion of this court, all the above, cumulatively point to
the rather casual and if one may say so, superﬁcial attention paid to the
entire episode involving blood transfusion. 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 ﬁltered 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, such as Lt Col Devika Bhat of 171 MH
who was present in 2002 or Col Sanjay Chauhan, 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 safe transfusion of blood to
644 SUPREME COURT REPORTS [2023] 14 S.C.R.

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.
71. The principle of res ipsa loquitur has been described in
Charlesworth & Percy on Negligence59 in the following terms:
“6-25. It has been said that “a prima facie case” should be the
preferred terminology. It means essentially a case which calls for
some answer from the defendant and will arise upon proof of: (1) the
happening of some unexplained occurrence; (2) which would not have
happened in the ordinary course of things without negligence on the
part of somebody other than the claimant; and (3) the circumstances
point to the negligence in question being that of the defendant, rather
than that of any other person”
6-26 The third requirement is usually fulﬁlled by showing that the
instrument causing the damage was in the management and control
of the defendant at the time of the occurrence, but this is not essential.
Where an object which causes an accident has, at all material times,
been under the control of the defendants and there is no evidence to
show how the accident happened, the presumption of negligence cannot
be displaced by evidence of the general care that has been taken.”
This court has, on several occasions in the past, particularly in cases
involving allegations of medical negligence, invoked the principle of res
ipsa loquitur (“the thing speaks for itself”). In V. Kishan Rao v Nikhil Super
Speciality Hospital & Anr.60, it was observed:
“In a case where negligence is evident, the principle of res ipsa loquitur
operates and the complainant does not have to prove anything as the
thing (res) proves itself’. In such a case it is for the respondent to
prove that he has taken care and done his duty to repel the charge of
negligence.”

59 Charlesworth & Percy on Negligence, 14th Edition (2018) Sweet and Maxwell @ 6-25,
page 400.
60 [2010] 5 SCR 1.
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING 645
OFFICER & ORS. [S. RAVINDRA BHAT, J.]

72. All these facts and circumstances, in the opinion of this court, prove
and establish that by reasonable standards of evidence, the appellant has
justiﬁed the invocation of the principle of res ipsa loquitor. The principle
was applied in the Nizam Institute of Medical Sciences (supra) wherein this
court held that:
“77. [..] in a case involving medical negligence, once the initial
burden has been discharged by the complainant by making out a case
of negligence on the part of the hospital or the doctor concerned, the
onus then shifts on to the hospital or to the attending doctors and it
is for the hospital to satisfy the Court that there was no lack of care
or diligence.”
Earlier, in Savita Garg (supra), the court had ruled that once the
complainant or aggrieved party had adduced some evidence that the patient
suﬀered (or died, as in that case) due to lack of care (or as in this case,
suﬀered irremediable injury due to want of diligence) “then the burden
lies on the hospital to justify that there was no negligence on the part of
the treating doctor or hospital. Therefore, in any case, the hospital is in a
better position to disclose what care was taken [..].”
73. At the same time, this court has cautioned that res ipsa loquitur
cannot be the only basis to fasten liability. This view has been advocated
(and applied) in Martin F. D’Souza (supra) and Bombay Hospital and
Medical Research Centre v Asha Jaiswal (hereafter, “Asha Jaiswal”) 61. In
Asha Jaiswal (supra), this court outlined the caution needed to apply res
ipsa loquitur:
“an application of the general method of inferring one or more facts in
issue from circumstances proved in evidence”. In this view, the maxim
res ipsa loquitur does not require the raising of any presumption of
law which must shift the onus on the defendant. It only, when applied
appropriately, allows the drawing of a permissive inference of fact,
as distinguished from a mandatory presumption properly so-called,
having regard to the totality of the circumstances and probabilities

61 2021 (10) SCR 1118.
646 SUPREME COURT REPORTS [2023] 14 S.C.R.

of the case. Res ipsa is only a means of estimating logical probability
from the circumstances of the accident.”
The above analysis leads this court to the conclusion that 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 suﬀered
by him, that are to be reckoned in monetary terms.
(iv) The relief of damages
74. 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 reﬁnement, 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.
75.The judgment in Raj Kumar v. Ajay Kumar62 had discussed and
declared the general principles relevant for the assessment of compensation
or damages for personal injuries. These principles have been applied, in
cases involving claims under the Motor Vehicles Act, 1988 as well as other
cases, including medical negligence cases. The court observed:

62 2010 (13) SCR 179.
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING 647
OFFICER & ORS. [S. RAVINDRA BHAT, J.]

“The court or the Tribunal shall have to assess the damages objectively
and exclude from consideration any speculation or fancy, though
some conjecture with reference to the nature of disability and its
consequences, is inevitable. A person is not only to be compensated for
the physical injury, but also for the loss which he suﬀered as a result of
such injury. This means that he is to be compensated for his inability
to lead a full life, his inability to enjoy those normal amenities which
he would have enjoyed but for the injuries, and his inability to earn as
much as he used to earn or could have earned. [See C.K. Subramania
Iyer v. T. Kunhikuttan Nair (1969) 3 SCC 64, R.D. Hattangadi v. Pest
Control (India) (P) Ltd. (1995) 1 SCC 551 and Baker v. Willoughby
(1969) 3 All ER 1528 (HL)].
6. The heads under which compensation is awarded in personal injury
cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, medicines,
transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have
made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suﬀering and trauma as a consequence of the
injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only
under heads (i), (ii)(a) and (iv). It is only in serious cases of injury,
where there is speciﬁc medical evidence corroborating the evidence of
the claimant, that compensation will be granted under any of the heads
648 SUPREME COURT REPORTS [2023] 14 S.C.R.

(ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account
of permanent disability, future medical expenses, loss of amenities
(and/or loss of prospects of marriage) and loss of expectation of life.”
76. The principles discussed and commended for general application
have endured and have been consistently followed by this court, in
calculating and awarding damages.
77. This court, in Nizam Institute of Medical Sciences (supra), outlined,
brieﬂy, what damages a person who has suﬀered due to medical negligence,
can be awarded. This court held that:
“92 [..] The kind of damage that the complainant has suﬀered, the
expenditure that he has incurred and is likely to incur in the future
and the possibility that his rise in his chosen ﬁeld would now be
restricted, are matters which cannot be taken care of under the
multiplier method.”
78. The court had emphasized on the applicability of the cumulative
eﬀect upon the patient, of the medical negligence, in the decision reported
as Malay Kumar Ganguly v Dr. Sukumar Mukherjee (hereafter “Malay
Kumar Ganguly”)63 and held that negligence of each treating contributory
fact resulting in the patient’s condition, has to be seen: “in a case of this
nature, the court must deal with the consequences the patient faced, keeping
in view the cumulative eﬀect.” Malay Kumar Ganguly (supra) is also an
authority for the reasoning that while awarding compensation, the court
should consider “loss of earning or proﬁt up to the date of trial” including
any loss “already suﬀered or is likely to be suﬀered in future”. Recently,
in Sidram v Divisional Manager64, this court underlined the rationale for
just compensation:
“32. This Court has emphasised time and again that “just
compensation” should include all elements that would go to place the
victim in as near a position as she or he was in, before the occurrence
of the accident. Whilst no amount of money or other material

63 (2009) 13 SCR 1.
64 [2022] 8 S.C.R 403.
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING 649
OFFICER & ORS. [S. RAVINDRA BHAT, J.]

compensation can erase the trauma, pain and suﬀering that a victim
undergoes after a serious accident, (or replace the loss of a loved
one), monetary compensation is the manner known to law, whereby
society assures some measure of restitution to those who survive, and
the victims who have to face their lives.”
In K. Suresh v. New India Assurance Co. Ltd.65, this court observed that:
“10. It is noteworthy to state that an adjudicating authority, while
determining the quantum of compensation, has to keep in view the
suﬀerings of the injured person which would include his inability to
lead a full life, his incapacity to enjoy the normal amenities which
he would have enjoyed but for the injuries and his ability to earn
as much as he used to earn or could have earned. Hence, while
computing compensation the approach of the Tribunal or a court has
to be broad-based. Needless to say, it would involve some guesswork
as there cannot be any mathematical exactitude or a precise formula
to determine the quantum of compensation. In determination of
compensation the fundamental criterion of “just compensation”
should be inhered.”
79. Recently, in Abhimanyu Partap Singh v. Namita Sekhon & Anr.,66
this court held that:
“compensation can be assessed in pecuniary heads i.e. the loss of
future earning, medical expenses including future medical expenses,
attendant charges and also in the head of transportation including
future transportation. In the non-pecuniary heads, the compensation
can be computed for the mental and physical pain and suﬀerings in the
present and in future, loss of amenities of life including loss of marital
bliss, loss of expectancy in life, inconvenience, hardship, discomfort,
disappointment, frustration, mental agony in life, etc.”
80. The appellant has claimed a total sum of ₹ 95,03,00,000/- (Rupees
ninety-ﬁve crores, three lakhs only), under various heads:

65 (2012) 11 SCR 414.
66 2022 (16) SCR 1.
650 SUPREME COURT REPORTS [2023] 14 S.C.R.

(i) ₹1.5 crores as travelling expenses, for his treatment, incurred-
every month from his house to New Delhi, (ii) ₹ 50 lakhs as the
expenses for his medicines, (iii) ₹ 1.53 crores for loss of salary,
from the date of his retirement due to not giving extension till
the age of superannuation, (iv) ₹1.5 crores as medical -expenses
which he is required to incur due to the non-availability of
medical services and an immunologist at his home town, (v) ₹10
crores for violation of his human rights, ₹ 40 crores for mental
and social agony, and ₹40 crores for his defamation.
(ii) The total salary claimed per annum was ₹ 10,89,052 / - (i.e. ₹
89,921/- per month multiplied by twelve months); to the total
salary for the “leftover period of service from 31 May, 2016
to 31 May 2033.)” calculated @ ₹ 5,44,526/-; plus a sum of ₹
10,89,052 multiplied by 12 (number of years left, till the age of
58 years) ₹ 2,80,97,541.60, added to which the appellant claims
a factor of 1.6 (for future prospects). The total thus worked out
is ₹ 50,57,55,748.80.
81. The appellant’s claim of ₹ 89,921/- per month, is based on the
calculation that he would have earned, had he been in service if the seventh
pay commission pay ﬁxation and adjustment were provided. However, he
was discharged from service on 31.05.2016. He claimed, in addition, a host
of allowances (dearness allowance, family assistance, house rent allowance,
good conduct allowance, etc.). No doubt these factors have to be considered
when loss of earnings or income is to be calculated. However, all allowances
cannot be granted, towards loss of earnings. This court is cognizant of the
fact that the appellant has also been drawing pension (including disability
pension which is now in the range of about ₹ 6000/- per month). Even if
the appellant’s calculation about loss of future earnings were to be taken
into account, given that he has been a pensioner, for the past 7 years,
adjustment of the base compensation ﬁgure for compensation for loss of
earnings has to be given. Therefore, taking a conservative consolidated
ﬁgure of ₹ 65,000/- per month, if the average pension earned is pegged @
₹ 25,000/- per month, the total ﬁgure he would be entitled towards loss of
earning, for seven years, would be about ₹ 33,60,000/-. The ﬁgure could
be rounded oﬀ, appropriately, to ₹ 35,00,000/-. The court would then, have
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING 651
OFFICER & ORS. [S. RAVINDRA BHAT, J.]

to take into account, the appellant’s age, as of date, which is 47 years.
Again, if a multiplier of 12 is applied to determine compensation for loss of
future income, including adding 40% towards loss of future prospects, the
ﬁgure would be ₹ 80,64,000/-. The total amount, (i.e., ₹ 35,00,000/- plus ₹
80,64,000/-) would be ₹ 1,15,64,000/- (Rupees one crore ﬁfteen lakhs sixty
four thousand only). Of this, a deduction for the expenses of the appellant,
calculated @ 25% would have to be made. The ﬁgure to be deducted would
be ₹ 28,91,000/-. The total amount, towards loss of earnings, including future
earnings, would then be ₹ 86,73,000/- (Rupees eighty six lakhs seventy
three thousand only).
Mental agony
82. This court has repeatedly emphasized that mental agony is an
important factor to be taken into account while calculating compensation. In
the present case, there are multiple facts, which in the opinion of this court,
establish that the appellant suﬀered from callousness and insensitivity of the
respondents, who persisted in being in denial. These may be brieﬂy set out:
a. Firstly, the appellant received the biggest jolt, when he was
informed that he was an HIV positive infected person, in
May, 2014. The subsequent tests and certiﬁcations were mere
palliatives. The respondents’ eﬀort was to somehow get rid of
his services, which they did with eﬀect from 31.05.2016.
b. Secondly, the appellant was virtually stonewalled in his eﬀorts
to secure documents, and information; most of his queries under
the Right to Information Act (RTI) were turned down; he had to
go in appeals.
c. Even the appellate authority 171 Military Hospital stated in its
letter (dated 12.06.2018) “is not authorized any Blood Bank
and hence no Pathologist is authorized nor posted, at any time.
However, an ad-hoc blood bank was established during ‘Op
Parakram’ i.e. in 2002. Blood would be requisitioned from 166
MH and stored at 171 MH.”
d. A tabular chart, showing the appellant’s queries, and their
outcome, with relevant particulars, is reproduced below, based
on the admitted documents placed on record:
652 SUPREME COURT REPORTS [2023] 14 S.C.R.

S No RTI Filing RT I R ep l y Contents of Reply
Date Date

1. 30.12.2016 18.01.2017 RTI was ﬁled by the appellant on 30.12.2016
seeking conﬁrmation regarding availability of
immunologist empaneled with ECHS Polyclinic
Ajmer and by response dated 18 Jan 2017, it
was conﬁrmed that no immunologist is available
in hospital at Ajmer which is empanelled with
ECHS Polyclinic Ajmer.
2. 14.01.2017 20.02.2017 RTI ﬁled by appellant regarding allotment of
service quarter/married accommodation and
the IAF replied, in the reply to the appellant’s
RTI query, that service quarter/married
accommodation was allotted to a married
air-warrior to live out with his family after
registration for married accommodation by
the respective individual and brought within
authorized married establishment as per seniority
in waiting list. It was further stated in reply
that diagnosis and treatment mentioned against
“patient must be duly signed by CMO of
concerned Government Hospital”.
3. 14.02.2017 14.03.2017 It was stated that in the RTI reply that the
information sought is ‘interrogatory in nature’
and does not fall within the definition of
“information”. It was admitted by HQ South
Western Air Command, IAF, Gandhinagar that
“Medical facility is the part of service conditions
of the Indian Air Force for Air warriors.”
4. 05.05.2017 13.07.2017 RTI application ﬁled on 05.05.2017 seeking for
copies of the appellant’s willingness certiﬁcate
for blood transfusion at the 171 MH facility
and whether the treating doctor informed the
appellant about the risks associated with the
blood transfusion. The reply was that no such
records are available with the hospital as same
fell under exemption under Section 8(1) of the
RTI Act, 2005 and the respective records were
forwarded to respective records office after
discharge from the hospital.
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING 653
OFFICER & ORS. [S. RAVINDRA BHAT, J.]

5. 18.06.2017 18.08.2017 An RTI was filed on 18 Jun 2017 wherein
amongst other things, appellant asked for
maximum age an airman can serve in IAF and
when will seventh pay commission be eﬀective
from. It was replied by reply dated 18.08.2017
that revised 7th pay commission is eﬀective from
01.01.2016 and maximum age airman can serve
in IAF is 57 yrs. (subject to extension on meeting
eligibility criteria and service exigencies).
6. 03.07.2017 11.07.2017 RTI application also ﬁled on 03.07.2017 by the
appellant to Ministry of Finance, Department
of Economic aﬀairs seeking details about the
ongoing inflation rate as per the Consumer
price index for the ﬁnancial year 2014-15 and
response was provided for the same vide letter
dated 11.07.2017.
7. 02.12.2017 04.01.2018 BH, Delhi Cantt -10 replied that no Immunologist
is posted at BH, Delhi Cantt-10. However,
doctors were available who could treat HIV/
AIDS patient at BH, Delhi Cantt-10.
8. 26.10.2018 05.12.2018 RTI by the appellant on 26.10.2018 to CPIO,
Indian Army regarding his blood group and RH
Factor Test report in respect of blood transfusion
at the 171 Military facility in 2002, and by reply
dated 05.12.2018 the respondent admitted that
Blood Group and RH Factor Test Report of
appellant in respect to Blood transfusion was
NOT available.
9. 22.04.2019 Date unclear On 22.04.2019, another RTI application by the
Appellant requesting for medical records in
respect of the medical board proceedings dated
12.12.2014 and any correspondence between the
IAF and the Registry of the military facility at
MH 171 and the reply (undated) stated that that
no such information was available.
10. 27.04.2019 Date Unclear RTI application dated 27.04.2019 to CPIO
Food Corporation of India wherein he asked for
reasons for exclusion of HIV category patients
from the category of Persons with Disability
and reference was made to a reply letter dated
29.05.2018.
654 SUPREME COURT REPORTS [2023] 14 S.C.R.

It was admitted by the Food Corporation that
HIV disease/ HIV positive applicants were not
considered in category of Persons with disability
and in the Online Application Form. No option
was available there to disclose the HIV positive
status of the appellant.
11. 17.05.2019 21.05.2019 RTI application dated 17.05.2019 filed by
appellant asking for copy of correspondence
between 171 MH facility and Senior Medical
Oﬃcer, SMC, HQ, SWAC (U) Gandhinagar in
2014 regarding medical board proceeding dated
12.12.2014, and by reply, it was informed that
no such correspondence existed.
12. 18.07.2019 16.08.2018 On 18 July 2019, Appellant ﬁled RTI application
for written correspondence between Air Force
and Registrar at 171 MH Medical facility in
respect of his letter dated 21 Jul 2014 and 16
Sep 2014. By letter dated 16.08.2018, he was
informed that no such correspondence in respect
of the above stated letter was exchanged between
the IAF and the Registrar of the military facility
(i.e., MH 171).
13. 27.06.2019 03.07.2019 RTI ﬁled on 27th June 2019 seeking for details
of availability of transfusion medicine expert
at the 171 MH Military facility and vide reply
letter dated 03.07.2019, it was admitted by
the ﬁrst respondent that no such transfusion
medicine expert (doctor) was available and no
blood grouping & Cross matching test report is
available at the said 171 Military hospital facility.
14. 13.05.2022 23.05.2022 RTI application filed on 13.05.2022 by the
appellant to 171 Military Hospital requesting
for the medical records pertaining to transfusion
of blood on 10.07.2002 and information
relating to source of the donor and vide reply
dated 23.05.2022. The appellant was informed
that no such information is available with the
respondents’ without assigning any reasons for
same.
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING 655
OFFICER & ORS. [S. RAVINDRA BHAT, J.]

15. 31.07.2022 11.08.2022 Another RTI dated 31.07.2022 ﬁled by appellant
to ECHS Cell, Station headquarters, Ajmer
asking for his eligibility to become ECHS (Ex-
Service Contributory Health Scheme) and it
was replied vide letter dated 11.08.2022 that no
provision exist by which Appellant can become
member of ECHS prior to retirement which
falls on 31.05.2016, and even after retirement,
Appellant had to register himself to become a
member of the ECHS and it was never mentioned
in oﬃce letter dated 25.07.2022 that he had
become member of ECHS from his date of
retirement i.e. on 31 May 2016.
16. (Unclear) 06.05.2022 Another RTI was ﬁled by the Appellant where
appellant asked for information to be provided to
him about name of laboratory test through which
he is likely to be infected with virus. AIIMS
vide letter dated 06.05.2022, while referring to
NACO Guidelines for HIV testing, 2015, stated
that “none of the diagnostics modalities can
ascertain or dig out the cause of action for HIV
virus that later became HIV positive”.
17. 24.07.2022 11.08.2022 RTI application dated 24 Jul 2022 filed by
the appellant asking if any circular/letter/
memorandum/order exists which exempts
defense personnels from complying with NACO
circular and guidelines to which it was responded
vide letter dated 11 Aug 2022 that no such
circular/order/memorandum/letter exists.
18. 23.10.2022 24.11.2022 RTI application dated 23.10.2022 (received by
Base Hospital, Delhi Cantt-10 on 01.11.2022)
ﬁled by Appellant u/s 7(1) of RTI Act (which
further provides that when an information
concerns life or liberty of a person, same
information shall be provided within 48 hrs
of receipt of the request). Amongst other thing
), he has asked whether the hospital lab has
facility for CD-4 counts. Hospital replied that
though they have facility for laboratory test for
HIV RNA for HIV defense personnel, however
lab does not have facility for CD 4 counts.
656 SUPREME COURT REPORTS [2023] 14 S.C.R.

(In their reply, they also mentioned that provisions
of section 7(1) of RTI Act should not have been
invoked by the Appellant as no imminent danger
to life or liberty was demonstrably proven by
Appellant in case information is not supplied
within 48 hrs.)

e. The same appellate authority’s order clearly went beyond its
remit, and- as discussed earlier, went on to highlight entirely
external factors, such as the appellant’s alleged marital discord;
it even mentioned the name of his spouse.
f. Once the appellant approached the Commission, and notice
was issued, in 2017, the respondents decided that the issue had
to somehow be dealt with; by orders issued in May 2018, after
notice was received, and when the reply was being planned, the
CoI was constituted.
g. The CoI did not involve the appellant at all; the entire eﬀort was
to somehow see how the respondents could absolve themselves
from liability.
83. This court has, in the past, highlighted that the head of mental
agony has to be assessed and granted while awarding compensation (Ref.
Spring Meadows; V. Krishna Kumar v State of Tamil Nadu67). In the latter
case, the High Court had awarded damages, upon a ﬁnding of negligence
on account of lack of care due to blood transfusion to the baby at the time
of her premature birth, which led to a medical condition, i.e., progressive
retinal disease. The court not only granted damages under the head of
mental agony, but also towards past medical expenses, and future medical
expenses, after factoring an annual inﬂation rate of 1% per annum. The total
sum awarded was ₹1.38 crores.
84. In the present case, the shock and agony faced by the appellant,
the trauma which he felt because of the virtual denial of his condition, the
stonewalling attempts of the respondents, in ﬁrstly denying his requests
for information, and then, holding a CoI behind his back, are actionable.

67 2015 (8) SCR 100.
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING 657
OFFICER & ORS. [S. RAVINDRA BHAT, J.]

Whilst individuals’ roles cannot be pinpointed, the overall inference one is
left to draw is overwhelming prejudice- despite the appellant’s unblemished
track record of service in the IAF. The premature retirement, and to cap it
all (in an incident for which the respondents cannot be held responsible)
his rejection by a public sector company, the Food Corporation of India
(FCI) on the ground of his being HIV positive are aggravated factors. The
IAF could certainly have taken pro-active steps to ensure that the appellant
was provided with some alternative employment, within its organization,
or as part of the armed forces’ rehabilitation programmes for veterans and
ex-servicemen. The overall result was acute mental agony caused to the
appellant. This court is of the opinion, that the appellant is entitled to ₹
50,00,000/- (Rupees ﬁfty lakhs only) towards this head.
85. The appellant had highlighted how his attempt to secure employment
elsewhere has been thwarted and relied upon the correspondence with FCI.
The respondents cannot be fastened with liability on that score, however, at
the same time, it would be relevant to highlight that Parliament has enacted
the HIV and AIDS (Prevention and Control) Act, 2017 (hereafter, “HIV
Act”) which protects and promotes the rights of persons aﬀected by HIV and
AIDS. The Act came into force on September 10, 2018. Its objectives are the
prevention and control of the spread of HIV and AIDS and the reinforcement
of legal and human rights of HIV infected persons and those aﬀected by
AIDS. It protects the rights of healthcare providers as well.
86. The HIV Act addresses stigma and discrimination68 (Section 3);
and aims at the creation of an environment enabling or enhancing access

68 Section 2 (d) (b) deﬁnes discrimination as something where a person “denies or
withholds any beneﬁt, opportunity or advantage from any person or category of
persons, based on one or more HIV-related ground”
Section 3, inter alia, states that:
“3. No person shall discriminate against the protected person on any ground including
any of the following, namely:— (a) the denial of, or termination from, employment or
occupation, unless, in the case of termination, the person, who is otherwise qualiﬁed,
is furnished with— (i) a copy of the written assessment of a qualiﬁed and independent
healthcare provider competent to do so that such protected person poses a signiﬁcant
risk of transmission of HIV to other person in the workplace, or is unﬁt to perform the
duties of the job; and Prohibition of discrimination. (ii) a copy of a written statement
by the employer stating the nature and extent of administrative or ﬁnancial hardship
for not providing him reasonable accommodation; (b) the unfair treatment in, or in
relation to, employment or occupation;…”
658 SUPREME COURT REPORTS [2023] 14 S.C.R.

to services. Section 5 of the HIV Act elaborately imposes obligations
upon persons to seek informed consent of concerned persons, before HIV
related testing or procedures are undertaken, and before any line of medical
treatment is to be given. Other provisions enabling access to diagnostic
facilities related to Anti-Retroviral Therapy (ART) and opportunistic
infection management for people living with HIV and AIDS have been
made. Further, the HIV Act provides for a grievance redressal mechanism
in the form of an Ombudsman at the state level and a Complaints Oﬃcer
at the establishment level for providing speedy redressal. Section 34 of the
HIV Act imposes obligations upon courts to anonymise the name of the
individual concerned aﬀected by HIV positive or AIDS, and also expedite
legal proceedings.
87. This court is conscious of the fact that the provisions of the HIV
Act cannot be applied to the facts of this case. Yet, it enacts standards and
imposes obligations upon several authorities, including the justice delivery
system, to take speciﬁed measures to ease and mitigate the hardships and
barriers which HIV or AIDS aﬀected persons, would ordinarily face. In
the light of its provisions, this court proposes its eﬀective implementation,
through operative directions to be issued hereafter.
Future care
88. The HIV positive condition is such that it can lead to slow and
debilitating results. The steady weakening and degenerative form of the
condition has been described as follows69:
“Acute infection
An HIV-positive person may not have many serious symptoms during
this stage, but there are usually large quantities of virus in their blood
as the virus reproduces rapidly. Acute symptoms can include: (a) fever
(b) chills (c) night sweats (d) diarrhea; (e) headache (f) muscle aches
(g) joint pain (h) sore throat (i) rash (j) swollen lymph nodes (k) mouth
or genital ulcers
Chronic HIV infection

69 https://www.healthline.com/health/hiv-aids/effects-on-body#respiratory-and-
cardiovascular-systems, last accessed at 05:41 AM on 25th September, 2023.
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING 659
OFFICER & ORS. [S. RAVINDRA BHAT, J.]

The next stage is called the chronic infection stage. It can last for as
long as 10 to 15 years An HIV-positive person may or may not show
signs or have symptoms during this stage. As the virus advances, the
CD4 count decreases more drastically. This can lead to symptoms such
as: fatigue; shortness of breath; cough; fever; swollen lymph nodes;
weight loss; diarrhea; rash.
AIDS
If untreated HIV advances to AIDS, the body becomes prone to
opportunistic infections. AIDS increases a person’s risk for many
infections, including a herpes virus called cytomegalovirus (CMV). It
can cause problems with the eyes, lungs, and digestive tract. Kaposi
sarcoma, another possible complication, is a cancer of the blood vessel
walls. It’s rare among the general population, but it’s more common
in people with advanced HIV. Symptoms include red or dark purple
lesions on the mouth and skin. It can also cause problems in the lungs,
the digestive tract, and other internal organs. HIV and AIDS also put
a person at higher risk for developing lymphomas. An early sign of
lymphoma is swollen lymph nodes.
Respiratory and cardiovascular systems
HIV makes it hard to ﬁght oﬀ respiratory problems such as the common
cold and ﬂu. In turn, an HIV-positive person may develop related
infections, such as pneumonia Without treatment for HIV, advanced
disease puts an HIV-positive person at an even greater risk for
infectious complications, such as tuberculosis and a fungal infection
called pneumocystis jiroveci pneumonia (PJP). PJP causes trouble
breathing, cough, and fever. The risk of lung cancer also increases
with HIV. This is due to weakened lungs from numerous respiratory
issues related to a weakened immune system.
According to available research, lung cancer is more prevalent among
people with HIV compared to people without it.
People with HIV are more likely to develop high blood pressure. HIV
also raises the risk of pulmonary arterial hypertension (PAH). PAH is
a type of high blood pressure in the arteries that supply blood to the
lungs. Over time, PAH will strain the heart and can lead to heart failure.
660 SUPREME COURT REPORTS [2023] 14 S.C.R.

If a person has HIV with a low CD4 count, they’re also more
susceptible to tuberculosis (TB).
TB is an airborne bacterium that aﬀects the lungs. It’s a leading cause
of death in people who have AIDS. Symptoms include chest pain and
a bad cough that may contain blood or phlegm. The cough can linger
for months.”
89. In the present case, the appellant was diagnosed HIV positive, and
immediately placed under ART which continues till date. His immune system
has gone down, due to the untreated condition, for some undetermined
time. He complains of reduced mobility; the IAF itself has characterised his
disability, though assigned it a ﬁgure of 30% disability; that was, however,
suﬃcient for them to dispense with his service. As time progresses, he
would need the assistance of a helper. Even conservatively calculated, such
a helper would have to be paid about ₹ 10,000/- to ₹ 15, 000/- per month.
If a calculation of average of ₹ 10,000/- to ₹ 15,000/- (i.e., ₹ 12,500/-) for
twelve years is taken into account, the total sum would be ₹ 18,00,000/-
(Rupees eighteen lakhs only).
Future medical care
90. The respondents, through the available medical facilities, have
till date provided medical assistance. Repeatedly during the hearing, the
appellant had been complaining of obstruction and delay, and denial of his
requests. The court had intervened. Oftentimes, the appellant – perhaps due
to his condition, and repeated feeling of exclusion, might have overreacted.
Yet, it is undeniable that the respondents owe a duty to ensure that the
appellant’s requests are met in a compassionate and timely manner. To
avoid any future friction, this court hereby directs the respondents to
extend fullest co-operation to the appellant, in regard to his future medical
treatment. Furthermore, the appellant shall be entitled to bi-monthly medical
check-ups at the relevant departments, in the Research and Referral Centre
(R&R) in New Delhi; for that purpose, the respondents shall ensure that the
necessary travel expenses, in accordance with the appellant’s entitlement are
disbursed. It is also clariﬁed that the appellant should ﬁll out whatever forms
are necessary for the timely disbursement of his pension, and entitlement,
on a monthly basis.
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING 661
OFFICER & ORS. [S. RAVINDRA BHAT, J.]

91. Before issuing concluding directions, this court would like to
record some relevant observations. People sign up to join the armed forces
with considerable enthusiasm and a sense of patriotic duty. This entails a
conscious decision to put their lives on the line and be prepared for the
ultimate sacriﬁce of their lives. A corresponding duty is cast upon all state
functionaries, including echelons of power within the armed forces to ensure
that the highest standards of safety (physical/mental wellbeing, medical
ﬁtness as well as wellness) are maintained. This is absolutely the minimum
required of the military/air force employer for not only assuring the morale
of the forces but also showing the sense of how such personnel matter and
their lives count, which reinforces their commitment and conﬁdence. Any
ﬂagging from these standards – as the multiple instances in the present
case have established, only entails a loss of conﬁdence in the personnel,
undermines their morale and injects a sense of bitterness and despair not
only to the individual concerned but to the entire force, leaving a sense of
injustice. When a young person, from either sex (as is now a days the case)
enrols or joins any armed forces, at all times, their expectation is to be
treated with dignity and honour. The present case has demonstrated again
and again how dignity, honour and compassion towards the appellant were
completely lacking in behaviour by the respondent employer. Repeatedly
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.
Concluding directions
92. As a result of the above discussion, it is held that the appellant is
entitled to compensation, calculated at ₹ 1,54,73,000/- (Rupees one crore
ﬁfty four lakhs seventy three thousand only) towards compensation on
account of medical negligence of the respondents, who are held liable,
for the injury suﬀered by the appellant. It is also held that since individual
liability cannot be assigned, the respondent organizations (IAF and Indian
Army) are held vicariously liable, jointly, and severally, to the above extent.
The amount shall be paid to the appellant within six weeks by the IAF, his
662 SUPREME COURT REPORTS [2023] 14 S.C.R.

employer; it is open to the IAF to seek reimbursement, to the extent of half
the sum, from the Indian Army. All arrears related to disability pension too
shall be disbursed to the appellant within the said six weeks period.
93.In keeping with the mandate of the HIV Act, the following directions
are issued to the Central and State Governments:
1) Under Section 14 (1) of the HIV Act, the measures to be taken
by the Central Government and all the State Government are,
to provide, (as far as possible), diagnostic facilities relating to
HIV or AIDS, Anti-retroviral 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, Anti-retroviral 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. These measures and guidelines shall
be issued within three months, and widely disseminated, in the
electronic media, print media and all popularly accessed public
websites.
3) Under Section 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 aﬀected
by HIV or AIDS. Both the Central and State Governments shall
frame schemes to address the needs of all protected persons.
4) Under Section 16 (1) of the HIV Act, the Central and all the State
Governments, shall take appropriate steps to protect the property
of children aﬀected by HIV or AIDS. By reason of Section 16
(2) of the HIV Act, the parents or guardians of children aﬀected
by HIV and AIDS, or any person acting for protecting their
interest, or a child aﬀected by HIV and AIDS may approach the
Child Welfare Committee [within the meaning of that expression
under Section 29 of the Juvenile Justice (Care and Protection
of Children) Act, 2000] for the safe keeping and deposit of
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING 663
OFFICER & ORS. [S. RAVINDRA BHAT, J.]

documents related to the property rights of such child or to make
complaints relating to such child being dispossessed or actual
dispossession or trespass into such child’s house.
5) The Central and every State Government shall formulate HIV
and AIDS related information, education and communication
programmes which are age-appropriate, gender-sensitive, non-
stigmatising and non-discriminatory.
6) The Central Government shall formulate guidelines [under
Section 18(1) of the HIV Act] for care, support and treatment of
children infected with HIV or AIDS; in particular, having regard
to Section 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. The
Central Government shall also notify HIV and AIDS policy for
establishments in terms of Section 12 of the HIV Act.
7) It is further directed that under Section 19 of the HIV Act, every
establishment, engaged in the healthcare services and every
such other establishment where there is a signiﬁcant risk of
occupational exposure to HIV, for the purpose of ensuring safe
working environment, shall (i) provide, in accordance with the
guidelines, ﬁrstly, 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 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 Section 20 (1) of the HIV Act, the provisions
of Chapter VIII70 of the HIV Act apply to all establishments
consisting of one hundred or more persons, whether as an

70 Dealing with “Safe Working Environment”.
664 SUPREME COURT REPORTS [2023] 14 S.C.R.

employee or oﬃcer or member or director or trustee or manager,
as the case may be. In keeping with proviso to Section 20 (1) of
the HIV Act, in the case of healthcare establishments, the said
provision shall have the eﬀect 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 Section 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 Section 20 (1) of the HIV Act
has to designate someone, as the Complaints Oﬃcer 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. The rules in this regard may be formulated
by the Central Government at the earliest, preferably within 8
weeks from today.
11) The Secretary, Department of Labour of every state shall ensure
the collection of information and data relating to compliance with
Sections 19 and 20 of the HIV Act, in regard to designation of a
complaint oﬃcer, in all the factories, industrial establishments,
commercial establishments, shops, plantations, commercial
oﬃces, professional organizations, and all other bodies falling
within the deﬁnition of “establishments” [under Section 2 (f) of
the HIV Act] which reads as follows:
““establishment” means a body corporate or co-operative
society or any organisation or institution or two or more
persons jointly carrying out a systematic activity for a
period of twelve months or more at one or more places for
consideration or otherwise, for the production, supply or
distribution of goods or services.”
Such information shall be forwarded to the Secretary, Union Ministry
of Labour and Employment, within 10 weeks. The Union Labour and
Employment Secretary shall ﬁle an aﬃdavit of compliance containing a
tabular statement, with respect to implementation of provisions of the Act,
within 16 weeks from today.
CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING 665
OFFICER & ORS. [S. RAVINDRA BHAT, J.]

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 Section 34 71 of the HIV
Act. Chief Justices of all High Courts, shall compile information,
and device methods of collecting information in that regard,
anonymizing identity of persons aﬀected, appropriately and also
complying with provisions of Section 34 (2) of the HIV Act. The
Registrar General of the Supreme Court shall also look into the
matter, and frame relevant guidelines which, after approval be
issued and implemented.
94. Before concluding, this court would place on record its appreciation
and gratitude to the amicus, Ms. Meenakshi Arora Senior Advocate, for her
valuable assistance; the assistance given by Mr. Vikramjit Banerjee, the
ASG; and Ms. Vanshaja Shukla, the amicus who painstakingly compiled
the paper-book, and patiently heard the appellant with the aim of addressing
all his concerns and assisted Ms. Arora. The court would also acknowledge
the appellant’s perseverance and the diligent research and scholarship put
in by him, in the relentless quest for justice. The respondents are directed
to bear the costs quantiﬁed at ₹ 5,00,000/- (Rupees ﬁve lakhs only) which
shall also be paid to the appellant, within six weeks. The Supreme Court
Legal Services Committee shall bear the honorarium of ₹ 50,000/- (Rupees
ﬁfty thousand only) to be paid to the amicus Ms. Shukla.
95. The appeal is allowed and any pending applications are disposed
of in the above terms.

Headnotes prepared by: Appeal allowed.
Ankit Gyan

71 34.(1) In any legal proceeding in which a protected person is a party or such person
is an applicant, the court, on an application by such person or any other person on his
behalf may pass, in the interest of justice, any or all of the following orders, namely:—
(a) that the proceeding or any part thereof be conducted by suppressing the identity
of the applicant by substituting the name of such person with a pseudonym in the
records of the proceedings in such manner as may be prescribed;
(b) that the proceeding or any part thereof may be conducted in camera;
(c) restraining any person from publishing in any manner any matter leading to the
disclosure of the name or status or identity of the applicant.

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