ORDER

BY SRI D.SURESH, MEMBER.

1.     This is the Complaint filed by the Complainants under Section 12 of Consumer Protection Act 1986, against the Opposite Parties (herein referred in short as O.Ps) alleging the deficiency in service and to refund  Rs.3,50,000/- along with interest 18% per annum and Rs.1,50,000/- incurring expenses towards medicines and lab test, and For Rs.20,000/- expenses towards payment of operation of both eyes of the 2^nd complainant and Rs.1,50,000/- as compensation for causing mental agony, trauma and for Rs.50,000/- towards the cost of the litigation and other expenses and for other reliefs as the forum deems fit.

2.     The Brief facts of the complaint are that, the complainant and his wife had be married for 15 years and had no children.  Complainant and his wife were fascinated by the advertisement on TV that OP has gained knowledge and experienced in IUI, IVF, ICSI, TESA, MESA and many more specialties as mentioned in the brochure.  Both complainants were unhappy because they did not have their own child. They wanted to go for IVF treatment with OP on seeing the  advertisement in TV and paper publication.

2.     Complainants approached 1^stOP  where they met one Dr. Gurumurthy K.T. who introduced himself as Doctor.  On the assurance of said K.T. Gurumurthy  and believing his words complainants agreed to go for IVF.  Both the OP firms are running in different places  by the afore said person.  Ops are explained the treatment schedule and treatment packages.  Complainant agreed for Rs.3,50,000/- package. The said package did not includeany medicines, or any external Lab tests.  After registration, complainants under went various test in PoorvaDiksha Diagnostic PVT Ltd which is under the ownership of 1^st OP, for which complainant has spent a sum of Rs.20,000/-  and also spent Rs.50,000/- for drugs.  Thereafter 1^st OP demanded a sum of Rs. 1,00,000/-  towards medicine  for future treatment.  Entire tests were conducted in the Lab owned by the 1^st OP and medicines were purchased from the medical shop owned by the 1^st OP.  After tests and administering medicine,  1^st OP demanded  Rs.3,50,000/- as per the package chosen by the complainant.  Out of the said amount  1^st OP received Rs.2,00,000/-  as towards  donation by the complainant  infavour of shrushti Medicare  and Research Foundation which is none other than OP No.2,  and K. T. Gurumurthy told that issuing said receipt is only for the purpose of evading tax.   Similarly on 25.11.2013 OP collected remaining amount of Rs.1,50,000/- from the complainant. 

3.     Again, on 11.12.2015, OPs demanded Rs.22,500/-towards special investigation. Though the complainant undergone various tests and had various drugs as prescribed by the OPs.  While taking treatment 1^st complainant got eye problem  and she got operated her both eyes at MRC eye hospital. Thereafter, it came to the notice of complainant that the said problem came due to the side effects of the medicine prescribed by the IVF treating doctor, for which complainant spent a sum of Rs. 20,000/-  towards operation.  Afterwards  complainant came to know about the matter through the media that,Gurumurthy K.T. has cheated the public in the afore said matter by publishing fanciful misleading advertisement  and also broad casted the issue that he is not a registered medical practitioner and he did not have any MBBS degree etc.,  complainant learnt that he (Gurumurthy) has been arrested and he is in police custody.    Complainant have made call to the OP Office many a times. Every time, the staff of the hospital were telling that the doctor would come back and treatment will be continued after a month. There was no response from their end.  Due the act of OP complainant suffered loss and injury to their health and also have suffered mental agony.  Hence this complaint.

4.     Upon issuance of notice OP No.1 and 2 appeared through their counsel filed its common version. In the version, it is contended that, OP No.1 is an organization established in the year 2012 which is providing infertility treatment for couple as per the ICMR  guidelines.  The 1^st OP institution runs under the specialized doctors and well trained staffs and works for infertile couples by providing assisted reproductive Technology (ART) treatments.  The said institution has required license from concerned authorities.   All medical procedure were being handled by the specialized doctors. OP No.2 is a NGO which is running social activities.  OPNo.2 was supporting  OPNo.1 by handling 3^rd party reproduction like Egg donor, sperm donor and surrogacy as per the ICMR guidelines. OP 2 institution is neither a clinic nor a hospital,  no medical activities has been carried  in the premises. 

5.     MrGurumurthy K.T., is not a licensed doctor but holding honorary doctors degree in embryology.  He hired qualified  and professional doctors who inturn provided medical treatment to the patients.

6.     Neither the OP nor its staff ever forced couples to take treatment but in turn explained services and medical treatment and procedures available.  Patientshave chosen to get treatment on their own will and qualified doctors have given treatment as per the medical procedure on the basis of medical reports.   Fake news was  telecasted deliberately to defame the success of OP.  Though the said patients were misguided they continued the treatment after discussion.

7.     Allegation of complainant inrespect of treatment is completely an afterthought, being influenced by the fake issues broadcasted in T.V.  Further OP states that they have not given any assurance with regard to 100%  fertility for couples and also states that there is no hospital which provides complete solution for male infertility. 

8.     Cost of one cycle of IVF was approximately Rs. 2,00,000/- which includes stimulations procedures/ trials and the patient is not given assurance or may not get result in one cycle. The OP voluntarily supported the patients by providing a low cost package system which include trials in 3 to 4 cycles of IVF procedures that ensures better result.   More than 7500 patients had registered under the OP and maximum number of patients have got positive  results as per their data base.  Unfortunately complainants discontinued the further treatment that should have been followed to get positive result.

9.     Complainants were given a clear instruction on how to take the medicines and methodology involved in taking the fertility treatment which instructions she failed to follow.  Due to not utilizing the medication properly same has not worked on complainant’s body.  OP submits that the receipts regarding the payments produced by the complainants in the present complaint are not relevant.       

10.   The fertility treatment and procedure being fairly modern and complex in nature require the opinion of an expert and in this case complainants have miserably failed to demonstrate as to whichis the cause on not achieves positive result.  There is no deficiency in services, not been negligent in their obligations, and hence OP prayed for dismissal of the complainant with cost.

11.   In order to prove the case, Complainant hasfiled hisaffidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether there is deficiency in service on

the part of OPs?

2) Whether the Complainants are entitled to

the relief prayed for in the complaint?

9.     WE ANSWER:-

POINT NO.1:    In the affirmative

POINT NO.2:    Partly in the affirmative.

                        For the following.

REASONS

POINT No.1:-

10.   On perusal of the complaint version evidence and documents of both side it is  clear that the complainants are husband and wife got married on23.11.2011. Even after 5 years of marriage they had no children. They intended to take IVF treatment.Hence they approached OP, on seeing advertisement in  T.V.  and other  print media. Further it is also mentioned in the  brochure  produced before this forum that Ops are experts in treating IUI, IVF, ICSI,TESA, MESA and many more special treatments.  Believing the color full words of OP, complainants were attracted to go for fertility treatment from the OP institution. There upon, complainants paid Rs.3,50,000/- towards cost of package for treatment and also paid Rs.93527/- towards cost of medicine and lab test charges. Though the complainants have attended the sittings as per the schedule prescribed by the OP, and taking treatments as per the directions of physicians appointed by the OP, they did not get effective solution for their problem. Hence complainants did not continue the treatment. 

11.   In their objection, OPs took contention that they have never stated that they will give 100% fertility for couples and only they said that they will give 100% solution for infertility.  Even there is clear statement in the advertisement. Complainants have misunderstood the wordings of the advertisement.   We have gone through the said advertisement. We feel that, there are many ambiguities involved in the said advertisement and a layman cannot go into the deep of its meaning.  Simply he can understand what he red on the face of advertisement board and wordings  given on T.V. screen in respect of the product or service.Hence,manufacturer or service provider cannot use  the innocence of the general public for their own benefit and they cannot take advantage also

12.   Such Advertisements has been found to violate the ASCI regulation.  The adds stimulates the consumer  ought to be banned because they literally force customers into taking up wrong decisions. If these adds are all exaggerated as per the facts this in complaint, would make the consumer suffer.  Such institutions in regard to profit being the main objective  omit important terms and conditions and disguise  the extra costs involved  and hide actual meaning in the wordings.  It is not just about making wrong decisions but in some conditions, these services projected in ads might also have some kind of health risks if followed the procedure directed by the fake physician.

13.   It is also a known fact that generally number of IVF  clinics  could be misleading people with their advertised success rates.  Many clinics not indicating whether their success rates were in relation to per cycle of treatment of embryo transfer or  followed the use of fresh or frozen embryos. The concern is that clinics can always construct figures that show their own performances in the best possible light while making competitors  look bad.  Just as advertising of prescription drugs to patients is not permitted,   a ban on advertising IVF should be considered if there is no binding standard  of  reporting.

14.   In the present case, the proprietor of institution was arrested in the particular issue with regard to misleading advertisement, general which creates bad impression on the general public and also on patients who are undergoing for the treatment of IVF in the OP’s institution. Under the circumstances,patient do not want to go for further treatment in said institution.  In the present case complainant had undergone many treatment, lab test and consumed a lot of medicines but still there was no trace  of complainant becoming pregnant. This itself call our attention to hold that there is negligence and unfair trade practice as the OPs published misleading advertisement to stimulate the general public to take treatment with it. In views of aforesaid discussions OPsare under taking unfair trade practice by publishing advertisement.Hence we answer POINT NO.1 in the Affirmative.

POINT NO. 2

15.   Since we have held Point No.1 in the affirmative Ops are bound to pay Rs.3,50,000/- towards Donation receipt paid by the complainant No.1 and to pay Rs.99,127/-  towars expenses incurred medicines and lab tests, in view of the Bills and Receipts in favour of treatment taken by the complainants, it was the bounden duty of the OP.No.1 and 2 are jointly and severally to pay the said amount. Hence OPsare directed to pay the said amount along with interest at 12% per annum on the above from………….  Further due to inaction of the OPs complainant was made to approach this forum by spending time, money and energy and also undergone mental stress and strain. Hence since the complainant has not make any material evidence to show that they have suffered Rs.1,50,000/- towards compensation and Rs.50,000/- for cost of the litigation expenses. Hence we order Ops to pay a sum of Rs.10,000/- towards damages and Rs.5,000/- towards litigation expenses in all. Hence, we answer POINT NO.2 PARTLY IN THE AFFIRMATIVE and pass the following:-   

ORDER

1. The Complaint is allowed in part with cost.
2. Ops are jointly and severally are hereby directed to pay a sum Rs.3,50,000/- towards Donation receipt paid by the complainants and to pay Rs.99,127/-  towards expenses incurred medicines and lab tests along with interest at 12% per annum from the date of i.e. on …..till the payment of entire amount to the complainant.
3. Further OPsare directed to pay Rs.10,000/- towards damages and Rs.5,000/- towards cost of the litigation and other charges.
4. O.Psarehereby directed to comply the above order at within 30 days from the date of receipt of this order and submit the compliance’ report to this forum within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order failing which the same will be destroyed as per the C.P. Act and Rules thereon.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 20^th NOVEMBER 2019)

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Doc.No.1: Brochurs of Ops.

Doc.No.2: Brochure of 1^st Op for IVF treatment.

Doc.No.3: Complainants treatment profiles for IVF procedure.

Doc.No.4: Receipts for laboratory tests 19 in No.s

Doc.No.5: Pharmacy Bills.

Doc.No.6: Receipt No.1050 dt: 14.11.2013.

Doc.No.7: Donation Receipt No.5337 dt: 25.11.2013.

Doc.No.8: Copy of the complaint dated 22.05.2015.

Doc.No.9: Copy of FIR in Crime No.250/2015 DT:22.05.2015.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: -nil-

Copies of Documents produced on behalf of Opposite Party/s

-nil-

MEMBER                        PRESIDENT