Date of Filing: 31/10/2015
Date of Order: 05/04/2017
ORDER
BY SMT.BHARATI.B.VIBHUTE, MEMBER
1. The complainant has filed this complaint U/S 12 of the Consumer Protection Act, 1986 against the opposite parties (hereinafter referred in short as O.Ps) alleging deficiency in service on the part of the O.Ps and prays for direction to the O.Ps to pay an amount of Rs.5,00,000/- with interest @ 18% per annum from the date of payment till realization, Rs.8,00,000/- towards loss of earnings for salary for a period of 2 years, Rs.2,00,000/- towards mental and physical agony along with Rs.1,00,000/- towards the cost of litigation.
2. The brief facts of the complaint is that, complainant No.1 and 2 are wife and husband and they did not have any issues from their wedlock and complainants wanted to have children. Complainants states that O.P.No.1 was given the advertisement in the T.V channel stating that, OP.3 is an expert in field of fertility and specialized and gained was knowledge and expert in IUI, IVF, ICSI, TESA, MESA, PESA etc. Further complainants states that OP.1 and OP.2 represented that theirs is well recognized medical institution wherein OP.3 has team of expert doctors to carry out the procedure and got 100% success rate in fertility. Complainants submits that OP.3 claimed to be senior and pioneer in fertility science and he is running the clinic by name Base Fertility medical science Pvt.Ltd., and OP.3 represented himself to be a senior embryologist and one of the Directors and also founder of Poorva Deeksha advance clinical laboratory, Shrushti Medicare Research Foundation and mentioned to be No.1 expert in, In Vitro Fertilization (IVF). OP.3 claimed to be a senior embryologist and he has also one of the Associate in the Base Fertility Package Scheme and he is working with OP.1 and 2 and assured 100% fertility for couples only if they avail the Package of treatment and as a result of treatment the couple will certainly get a child.
3. Further complainants believing the words of Ops and consulted Ops in the month of March 2013 and at that time Ops had variety of packages scheme in relation to fertility treatment. OP.3 strangely represented to the complainants that higher the package scheme the faster the will be fertility. Accordingly the complainants took the package for Rs.3,00,000/-. Upon payment of the said amount Op.3 on the same day started treating the complainant No.1 and complainants were called upon to pay separate consultancy fee each time. Thereafter Ops asked the complainants to undergo various test and complainants spent almost Rs.2,00,000/- towards undergoing various medical test, medicines and injections other than package amount of Rs.3,00,000/-. Complainants submit that they were treated for more than 24 months but there was no positive result with the treatment provided by the Ops. Ops had assured the complainants that the whole package treatment will get over within the maximum period of 6 to 8 months but the treatment was dragged for almost two years in order to make profit by the Ops. Further complainant’s states that recently they came to know that Op.3 who claims as Dr. K.T.Gurumurthy is not at all a doctor and he is an ordinary lame man and with an intention to cheat innocent person acted like doctor. Further Ops also advertised in TV programs every week about positive results. Further complainants states that Ops adopted unfair trade practice without having the academic qualification and authentication on the subject and Ops have adopted illegal method of treatment and have cheated people by giving falls advertisement and bogus treatment. Hence this complaint.
4. Upon issuance of notice to O.P No.1, 2 and 3, the notice sent returned as no such firm or person in the address and returned as left. Complainant had taken substituted service through paper publication. Inspite of which O.P.No.1, 2 and 3 did not appear nor contested the matter and hence O.P. No.1 to 3 was placed exparte.
5. To substantiate the above case, the complainants have filed the affidavit evidence along with documents. The complainant also files written arguments. We have heard the arguments.
6. On the basis of pleadings of the complainants, the following points will arise for our considerations are:-
(A) Whether the complainants have proved
deficiency in service on the part of the O.Ps?
(B) Whether the complainants are entitled to
the relief prayed for in the complaint?
(C) What order?
7. Our answers to the above points are:-
POINT (A) & (B): In the affirmative.
POINT (C): As per the final order
for the following:
REASONS
POINTS (A) & (B):-
8. On perusing the complaint it is the specific case of the complainants is that they are not having issues. Further the complainants lured by the advertisements given by the O.Ps regarding treatment of the couples who are having no issues and approached the O.Ps. The allegation of the complainants are that, they incurred medical expenditure to an extent of Rs.5,00,000/- paid to the O.Ps. Further alleged that, the O.Ps giving unnecessary tests and collected the huge amount. The complainants states that, inspite of 24 months treatment and multiple follow-ups as advised by the O.Ps there is no positive result came out from the treatment. The complainant alleges that, on improper treatment both the complainants suffered with head ache, back pain, sleepiness and irregular periods due to the improper, immature and illegal medical treatment of the O.Ps and their prescriptions.
9. In order to prove the case of the complainants, complainants filed affidavit evidence along with medical bills. On perusing the medical bills it is evident that, complainants incurred expenditure of Rs.3,70,000/- towards their treatment and paid to the O.Ps. On perusal of the receipt it clearly discloses O.Ps collected Rs.2,50,000/- on 28.02.2013 and issued the receipt stating that donation receipt bearing No.744 also on perusing receipt bearing No.2128 dated 28.02.2013 complainants once again paid Rs.50,000/-. The very collection of the amount by the O.Ps and issuing receipts, showing as donation receipt itself contrary to the medical profession, he is not only cheated the complainants but also the Government to avoid Tax. Further on perusing other receipts and these receipts discloses that complainants spent Rs.67,624/- for various test and treatment.
10. The none appearance of OP and consequently placing exparte and hence all the allegations made in the complaint remained unchallenged. Further during the course of arguments it is brought to the notice of the Forum there were several other similar complaints filed against the O.Ps before this Hon’ble Forum and finally allowed in the favour of the complainants. On perusal of the earlier orders passed other similar complaints, in the said complaints the question of academic qualification not proved by the O.Ps. Under the circumstances it is not possible for us to disbelieve the case of the complainants and on the basis of material evidence on record we reached to conclusion that, complainants proved deficiency in service on the part of the O.Ps.
11. However, complainants alleged that, the O.Ps collected huge of Rs.3,00,000/- by giving unnecessary tests and finally yields no result. Further alleged that they suffered mental agony, side effects like improper period, itching, stomach ache, obesity etc. However, complainants did not establish by providing credible evidence in order to ascertain the complainants suffered all those side effects stated supra in order to award compensation as sought in the complaint. It is worth to note that, the medical profession is considered as service and where the O.Ps collected the amount Rs.3,00,000/- and issued receipts stating that, they have collected the amount for donation and itself is a unfair trade practice. In the attendant circumstances of the case, we are of the considered opinions that, the O.Ps have no right to collect donations forcefully from the complainants. Hence we direct the O.Ps to refund of Rs.3,00,000/- along with Rs.1,000/- towards the cost of litigation to the complainants and it will meets the ends of justice. In the light of above discussion, we accordingly answered Point No. (A) and (B) in the affirmative.
POINT No.(C)
12. On the basis of the findings given above on the Point No. (A) and (B) and in the result, we proceed to pass the following:-
ORDER
- The complaint is allowed-in-part with cost.
- O.Ps. are jointly and severally liable to pay a sum of Rs.3,00,000/- to the complainants.
- The O.Ps are directed to pay Rs.1,000/- towards cost of the proceedings to the complainants.
- The OPs are directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 45 days from the date of receipt of this order, failing which O.Ps are directed to pay interest at the rate of 9% per annum on the amount mentioned above from the date of receipt of the order till realization.
- Send a copy of this order to both parties free of cost.
(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 05th Day of April 2017)
MEMBER MEMBER PRESIDENT
