DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS ,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. 78_ OF ___2017
DATE OF FILING :21.06.2017 DATE OF PASSING JUDGEMENT: 23.03.2018
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Biswajit Banerjee, son of late Probodh Kumar Banerjee of Vill. Duilya, Daspara, P.O Duilya, P.S Sankrail, Howrah-711302.
O.P/O.Ps : 1. American Homoeo Lab, Sonarpur, Kamorbad, Doltala, Kolkata – 150.
2. Dr. R. Mondal, Sonarpur, Kamorbad Doltala, Kol-150.
3. Kajal Dutta, Senior Advisor, 34 No. Dhaniapara Lane, Barrackpore, Kolkata- 122.
Proforma O.P : Dr. Amit Khamroy, Modern Homeo Clinic , Andul Station Road, Jhorhat (Andul-Mouri), Howrah, Pin-711302.
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J U D G E M E N T
Sri Ananta Kumar Kapri, President
Litany of woes of the complainant continues unabated still now ; he keeps on whining about without getting any redressal of his grievances anywhere. Last of all, he has approached this Forum with the filing of the instant case, under section 12 of the Consumer Protection Act, 1986 ,alleging deficiency in service and unfair trade practice on the part of the O.P nos. 1 to 3.
The facts leading to the filing of the instant case by the complainant may be epitomized as follows.
The complainant is a chronic patient of ailments of various kinds and he was expecting recovery from various ends. Once an advertisement came to his notice. The advertisement was thus; “ New convulsion in the world of treatment”. This advertisement is issued by the American Homoeo Lab i.e O.p-1. Lured by such advertisement, the complainant attended O.p-1 on 21.9.2014 . O.p-2 poses himself to be an Homeopath Doctor. He examined the complainant and prescribed medicines for one month’s course of treatment. He demanded Rs.5000/- from the complainant therefor. Complainant deposited Rs.1300/-as advance that day. On 28.9.2014 complainant again made a visit to O.p-1 and paid balance amount of Rs.3700/-. But no bill was issued either by the O.P-1 or by the O.P-2 to the complainant. On payment of the said money O.p-2gave out that their Senior Doctor i.e O.P-3 was coming and that he should have been examined by him. Accordingly, O.P-3 examined the complainant on 28.9. 2014 and after examination he disclosed that the power of medicine prescribed by the O.p-2 should have been increased, for which Rs.11000/- were to be deposited by the complainant. At this, the complainant expressed his unwillingness to make payment of such a huge amount of money; he demanded refund of Rs.5000/-already deposited by him. O.P nos. 2 and 3 threatened the complainant by saying that his case was very serious and he might be a victim of heart attack at any time unless medicines were not used. This way, complainant was persuaded to pay Rs.6000/-; Rs.5000/- was said to be arranged by O.P-3 from Marwari Relief Society as he happens to be a Member of that Society. On 30.9.2014 the complainant deposited Rs.6100/- ( Rs.100/- for Doctor’s fees ) along with two passport size photographs and photocopy of Voter Identity Card in cash counter of O.p-1 for the purpose of producing the same before the aforesaid Society. No money receipt was given to the complainant by the O.p-1 despite his demand to that effect. The complainant took away the medicine for a week and used the same; his physical condition started deteriorating more and more with multiple physical disorder, resulting in his incapability to move freely. Then and then he rushed to the O.p-1 , but the staff of O.p-1did not entertain him. They even did not issue the money receipt to him for the payment made earlier by him. The complainant returned home with empty hand. He wrote letter to O.P nos. 1 and 2 on 9.10.2015 and also to the Council of Homeopathic Medicine on 29.10.2015. He also wrote a letter to the Hon’ble Minister, Consumer Affairs Department on 21.12.2015 which was duly received by the Department on 13.1.2016. He also lodged a G.D.E being no.2389 on 24.4.2016 before the Sonarpur Police Station against the O.P nos. 1 and 2. But, to no effect. He did not get any relief from any corner. He was treated by Dr. Amit Khamroy, (O.P-4) on 25.12.2015 and got some relief from the ailments he suffered. O.P-4 certified that the medicines prescribed by the O.P-2 was not related to Homeopathic medicines. So, ultimately when all the avenues for relief were closed before the complainant, the complainant filed the instant case ,praying for refund of Rs.11,100/- , payment of Rs.7 lac as compensation etc. Hence, this case.
O.P nos. 1 and 2 have refused to accept the service of notice.
O.P-3 has not turned up to contest the case by filing written statement inspite of service of notice made to him. The case is ,therefore, heard exparte against them.
Upon the averments of the complainant, the following points are formulated for consideration herein.
POINTS FOR DETERMINATION
- Is the case barred by limitation ?
- Have the O.P nos.1,2 and 3 adopted any unfair trade practice as alleged by the complainant?
- Are the O.P nos. 1,2 and 3 guilty of deficiency in service as alleged by the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for?
EVIDENCE OF THE PARTIES
The evidence is filed on affidavit by the complainant with a series of annexures ,which are earmarked by him as Annexure ‘A’ to ‘H’ as detailed in affidavit in chief.
DECISION WITH REASONS
Point no.1:
A plain reading of the complaint goes to reveal that the complainant went to O.p-1 for treatment in the year 2014. The complaint is filed in the year2017 i.e after expiry of about three years. So, prima facie it appears that the complaint is barred by limitation as it is not filed within two years of the cause of action arising for the first time. But a deeper consideration goes to reveal that the complaint is not barred by limitation. It is stated in the complaint that the complainant went to O.P-4 , an Homeopathic Physician on 25.12.2015 for treatment and it is this doctor i.e O.p-4 who disclosed for the first time to the complainant that the medicines given by the O.P nos. 2 and 3 are not related to Homeopathy. The discovery rule comes into play herein and at this juncture the complainant discovers that he has been deceived by O.P nos. 2 and 3 in the facade of Homeopathic treatment. So, the cause of action will start running from 25.12.2015. That apart, the cause of action of this case is a continuing one . The instant case is filed on 21.6.2017 i.e within two years from 25.12.2017 and as such the case is found not to be barred by limitation.
Hence, this point is primarily answered in favour of the complainant.
Point no.2:
Now to see whether the O.P nos. 2 and 3 have adopted any unfair trade practice as alleged by the complainant. In the instant case, the complainant has filed affidavit in chief, along with all the documents which are earmarked as Annexures to Affidavit in Chief. The O.P nos. 1,2 and 3 have not turned up to contest the case. They have no courage to contradict what is stated by the complainant. They could have rebutted the genuineness of the documents filed by the complainant. But they have not done so. In the circumstances, the evidence of the complainant and also the documents filed by him stand un-rebutted.
Let us see how far the allegation of the complainant stands proved by his evidence and the documents filed by him herein.
It is alleged by the complainant that the O.P nos. 1,2 and 3 have issued a misleading advertisement by which he was allured and went to them for treatment of his disease. It is further alleged by him that the said O.Ps extracted huge amount of money from him i.e Rs.11,100/-as the price of medicine and fees of Doctor that that he used the said medicine. But the said medicines exacerbated the condition of the complainant. The said O.Ps did not grant any money receipt for the money paid by him. So, the allegation of unfair trade practice is brought against those O.Ps by the complainant.
Let us see now how far the complainant has been able to prove this allegation of unfair trade practice against the said O.Ps i.e O.P nos. 1,2 and 3.
While dealing with Ludhiana Improvement Trust Vs. Shakti Cooperative House Building Society Ltd. 2009 (2) CPJ 40 (SC) , the Hon’ble Apex Court has laid down a test which provides the key to the solution of dispute regarding unfair trade practice and the relevant portion of its observation is quoted below as thus:
“When a problem arises as to whether a particular act can be condemned as an unfair trade practice or not, the key to the solution would be to examine whether it contains a false statement and is misleading and further what is the effect of such a representation on the common man”.
In the light of the above observation of the Hon’ble Apex Court we proceed to examine how far the complainant has been able fulfill the tests as laid down by the Hon’ble Apex Court and we like to deal with those tests at seriatim.
- Whether the advertisement was issued by O.P nos. 1,2 and 3.
A copy of the advertisement is filed herein by the complainant and the same is earmarked as Annexure A by him. On perusal of this advertisement it is found that some mobile phone numbers i.e 9836248102 and 9836247959 are mentioned in the said advertisement.It is also found from the said Annexure that it was issued by American Homeo Lab i.e O.P-1.
Annexure B is the prescription which was given to the complainant by O.P nos. 2 and 3. A perusal of Annexure B reveals that the above mentioned mobile phone numbers are also mentioned in Annexure B. The complainant has stated in his affidavit-in-chief that he was allured by the advertisement and went to O.P-1 , where he was treated by O.P nos. 2 and 3. The prescription i.e Annexure B is said to have been given to him by O.P nos. 2 and 3. This deposition of the complainant as transpiring in his Affidavit-In-Chief has remained unrebutted andrelying upon this unchallenged evidence of the complainant and also taking into consideration the advertisement (Annexure A) and the prescription (Annexure B) we are of the opinion that the advertisement was issued by none but O.P nos. 1,2 and 3.
- Whether the advertisement contains any false statement.
The said advertisement certainly contains a false statement. It has been advertised therein “100% guarantee with action starting in a day and recovery within a month”.
100% guarantee !Can itbe given by any Doctor , however qualified and competent he may be?No Doctor can give such a guarantee to any patient. “What is lotted cannot be blotted” as Goes the adage. Even the Almighty cannot save a person from the clutches of death. No one can escape the clutches of destiny. If any one gives 100% guarantee of recovery to all the patients ,his representation of such kind is nothing but a downright falsehood and such representation is considered to be made by him with extraneous motive. The representation by a Doctor giving 100% guarantee of all cases is surely a blatant lie and a complete bluff.
- Whether the said advertisement has a tendency to mislead the common people.
The prescription issued by O.P nos. 1,2 and 3 has been filed herein and the same is marked as Annexure “ B “. A perusal of Annexure B reveals that there is no name of doctor mentioned; no registration number is mentioned; no qualification of doctor is also mentioned therein. The advertisement (Annexure A) reveals that the name of establishment i.e O.P no.1 has been given “American Homeo Lab”. The name seems to be very much impressive. It has been a fashion of the day to use reference of foreign country in connection with the business, because the elements intending to do mischievous acts have discovered by this time that the Indians have a penchant for whatever is foreign. Thanks to our subordination for about 200 years under the yoke of British rule. We think that whatever is foreign is par excellence . It is our besetting sin and the unscrupulous persons of the society want to exploit the common people having opportunity of this weakness of ours.
In the instant case, The O.Ps i.e O.P nos. 1,2 and 3 have taken the opportunity of that weakness of us. They have christened their laboratory as American Homeo Laboratory; very often we also come across such kind of tricky advertisement in various forms ,such as “German Homoeo Laboratory, International School for the kids etc”. The said O.Ps have exercised the tricky name i.e American Homoeo Laboratory only to mislead the common people. Whenever the word “American” is annexed to the name of any institution, our people thinks that the said organizations surpasses all other organizations in quality and efficiency. The advertisement is undoubtedly a misleading one and it is just like a mirage – a tantalizing illusion having proclivity to mislead the common people.
- The effect of such representation on common people.
The effect of such representation as made out in the advertisement is surely dangerous and destructive. The common people will head-long rush to the institution i.e O.P-1 only to be deceived and deprived of their hard-earned money. They would think that they will get treatment there from American Doctors and that America-made medicines would be provided to them to cure them in all respect. The people will not be cured there; they will fall in a trap and their blood will be snaked to the lees. Their money would be fleeced away by the O.P nos. 2 and 3, not to speak of their being recovered by the medicines provided by the O.P nos. 2 and 3. Complainant’s condition started deteriorating ; physical system got exacerbated by taking medicine from O.P nos. 2 and 3. So, the effect of the representation of the advertisement on common people is that they would make a bee-line before O.P-1 with a hope of recovery, but instead of recovery they would be only fleeced there.
Upon what have been discussed hereinabove, it is found that all the tests answered for establishment of unfair trade practice and as laid down by the Hon’ble Apex Court in the case cited above are satisfied by the complainant and, therefore, we do not find any difficulty to hold that the O.P nos. 1,2 and 3 are conducting unfair trade practice in order to make wrongful gain for their own and that the complainant has been made a scapegoat to such unfair trade practice by those O.Ps.
The point is thus answered in favour of the complainant accordingly.
Point no.3:
Now arises the question whether the O.Ps i.e O.P nos. 1,2 and 3 are guilty of deficiency in service as alleged by the complainant.
The O.P nos. 1 ,2 and 3 will be held guilty of deficiency in service ,if any negligence is found within them in so far as their treatment of the complainant is concerned.
We have already mentioned that complainant has filed copy of the prescription which is marked as Annexure B therein. On perusal of annexure B it is revealed that there is no mention of any licence number of O.p-1. There is no mention of the names of O.P nos. 2 and 3 on the said prescription. There is no mention of any qualification of O.P nos. 2 and 3 on the said prescription; even the names of homeopathic medicines have not been clearly mentioned in their full name on the said prescription. Why are not these mentioned on the prescription? Why are the said O.Ps acting in husk-manner? It is only for the reason that the skeleton will tumble down one after another from the cupboard and ,therefore, all the above informations have been kept concealed by the O.P nos. 2 and 3 . The O.P nos. 2 and 3 have no right to practice homeopathy; they are not at all qualified doctors; they have no skill to deal with homeopathy; and ,therefore, they have not mentioned all the above informations in the prescription. These are certainly negligence on their part andthis negligence on their part amounts to deficiency in service also.
This point is thus answered also in favour of the complainant.
Point no.4:
It is deposed by the complainant in his affidavit-in-chief and also in the complaint that he has paid Rs.11,100/- to O.P-1 and the O.P-1 has not granted any receipt to him therefor. This deposition of the complainant has remained unrebutedand we find no reason to disbelieve the evidence of the complainant. Regards being had to this aspect we do hold that the complainant is entitled to get refund of Rs.11,100/-from the O.Ps i.e O.P nos. 1,2 and 3. That apart, the sufferings of the complainant know no bounds. He has run from pillar to post to ventilate his grievance against the said O.Ps. He has been suffering from some symptoms of disease but the torture of disease seems to be no more violent than that of the behavior which has been meted out to him by the O.P nos. 1,2 and 3. The complainant has certainly sustained a lot of harassment and mental agony due to unlawful and unethical act of O.P nos. 2 and 3 and, therefore, he is entitled to get compensation from those O.Ps.
In so far as O.P-4 is concerned, there is no cause of action arising against him and no relief has been prayed for against him by the complainant and, therefore, the case deserves to be dismissed against him i.e O.P-4.
This point is thus answered also in favour of the complainant .
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is allowed exparte against O.P nos. 1,2 and 3 with a cost of Rs.5000/- and dismissed exparte against O.P-4 without cost.
The O.Ps , particularly O.P nos. 2 and 3 who are jointly and severally liable to make payment to the complainant, are directed to refund a sum of Rs.11,100/- to the complainant and also to pay Rs.50,000/- as compensation for harassment and mental agony caused to the complainant, out of which Rs.25000/- will be given to the complainant and Rs.25000/- will be deposited in the Consumer Legal Aid Fund of South 24-Parganas, along with a payment of Rs.5000/- as litigation cost as referred to above within a month of this order, failing which the compensation amount and the amount of cost will bear interest @10% p.a till full realization thereof. Further we do feel an urge to direct the O.P nos. 2 and3 not to issue any such advertisement henceforth and to discontinue their clinic (O.P-1) at once and not to repeat them.
At the same time, we do further also feel an urge to direct the Officer-In-Charge of Sonarpur P.S to see whether the said Institution i.e O.P-1 ‘American Homeo Lab’ at Sonarpur, Kamorbad, Doltala, Kolkata – 150 is closed by O.P nos. 2 and 3 ,so that no innocent person is ever hoodwinked in future by those O.Ps, or else he would take proper step to seal the same , as it appears to us that the closure of the said clinic is the utmost need of the hour to serve the societal purpose and that mere issue of direction to O.P nos. 2 and 3will not be sufficient enough to fulfill the said purpose.
Let a copy of this order be sent to the Officer-In-Charge of Sonarpur P.S for taking necessary action and filing compliance report before this Forum by 5.4.2018 positively.
Let a free copy of this order be given to the parties concerned at once.
President
We / I agree.
Member Member
Dictated and corrected by me
President
