Order No. 22 dt. 04/09/2019
Case of the complainant in brief is that the complainant no.2 was suffering from severe neck pain and being attracted by the advertisement of o.p. no.1 – Ayusya Herbal Clinic he decided to get treatment from the o.p. no.2 – doctor. Accordingly, an appointment had been fixed between complainant no.2 and o.p. no.2 on 22/02/2016. It is stated in the petition of complaint that the cost of total treatment package would be Rs.46,250/- and as it was beyond the capacity of complainant no.1, the mother of complainant no. 2, she only paid Rs.21,550/- on 30/01/2016 to the o.p. no.1 and further paid an amount of Rs.300/- to the o.p. no.2. It is further stated that o.ps assured her about her son’s ailment that after getting 50% of the treatment the improvement will be seen and o.p. no.1 gave some medicines to the complainants which were without level, composition and manufacturing or expiry date. After a period of one and half months complainant no.1 noticed no improvement of her son’s health rather than development of some serious hormonal problem cropped up. Thereafter Complainant no.1 wanted to meet o.p. no.2, the treating doctor but he did not want to discuss about the treatment of complainant no.2 with the complainant no.1. Finding no other alternative the complainant no.1 consulted another doctor and getting treatment of the said doctor complainant no.2 got relief from his previous ailment. Thereafter the complainants requested the o.ps to refund the consideration amount but o.ps refused to refund the same hence the complaint case is filed by the complainant alleging deficiency in service and unfair trade practice on the part of the o.ps and praying for direction upon the o.ps to pay Rs.21,550/- along with compensation of Rs.60,000/- and litigation cost of Rs.10,000/-.
Notices were served through paper publication upon the o.p. nos. 1 & 3. In spite of that none appeared on behalf of them. Hence the case has proceeded ex parte against them.
O.p. no.2 contested this case by filing w/v, denying and disputing all the material allegations made against him, stating that o.p. no.1 is a partnership firm and o.p. no.2 is one of the partners of the said firm. It is stated by the o.p. no.2 that duration and frequency of the therapy, which was given by the o.p. no.2 was discontinued by the complainant no.2 for which the complainant no.2 did not get any improvement or fruitful result regarding this health ailment. It was the own wish and whims of the complainant no.2 that he deliberately discontinued the treatment after taking initial sessions and advices of the treating doctor. O.p. no.2 has raised the point that complainant no.1 is the mother of complainant no.2 and she has no connection in this case as she is neither a patient nor the subject of any treatment. Hence she does not come under the definition of 'consumer’ as defined in the C.P. Act. O.p. no.2 further stated that they have already provided service to the complainant no.2. Hence the o.ps have no deficiency in providing service. Accordingly, the o.p. no.2 has prayed for dismissal of the case.
On the basis of the pleading of the parties the following points are to be decided.
- Whether the complainants are consumers under the o.ps?
- Whether there is deficiency in service on the part of the o.ps?
- Whether the complainants are entitled to get the relief as prayed for?
D.W.R.
All points.
Complainant no.1 is the mother of complainant no.2. Complainant no.2 availed a medical service from the o.ps and complainant no.1 paid the consideration amount of Rs.21,250/- by cheque to the o.p. no.1 towards medical treatment of o.p. no. 2. Thus the complainants become consumer under the o.ps as per Section 2(1)(d) of C.P. Act, 1986.
The complainant no.1 alleged that o.ps have received the 50% of the total consideration amount and assured them that after getting 50% of the treatment a remarkable improvement of complainant no.2 will be seen. It is the specific defence of the o.p. no.2 that the complainant no.2 requested them to receive his treatment cost in two installments. On request of the complainants they allowed them to pay the amount into two installments but they did not give any assurance of improvement of the ailment of the complainant no.2 only getting 50% of the treatment.
It is specific allegation of the complainant that after getting treatment for one and half months no improvement of the complainant no.2 was found. On the other hand o.p. no.2 defended that the complainant no.2 did not complete the entire course of treatment and discontinued the same on his own volition. On perusal of documents on record it appears that the complainant no.2 took his first therapy on 22/02/2016 thereafter no improvement was noticed and (further he developed some hormonal problem) for which he had to visit Dr. Sitangsu Sekhar Nandi on 07/03/2016 for getting immediate relief from his ailment (Had the complainant no.2 got the proper therapy from o.p. no.2, he wouldn’t have visited another doctor for getting relief from the same ailment). It further appears that complainant no.1 paid an amount of Rs.21,550/- to the o.p. no.1 towards her son’s treatment. If there would have been any improvement seen he would not have consulted another doctor by paying fees. It further appears that complainant no.2 consulted Dr. Sitangsu Sekhar Nandi on 07/03/2016 and thereafter he frequently consulted the doctors. It is stated by the complainant no.1 that after getting continuous treatment complainant no.2 got relief from his tremendous neck pain. The complainant no.1 further alleged that the o.ps have used oil massage all over the body of complainant no.2 where the problem was persisted only on the neck of the complainant no.2. O.p. stated that it is not necessary to administer the medical therapy. On the particular region where the problem persists.
From the above discussion we are of opinion that o.ps have failed to provide proper treatment to the complainant no.2 for which the complainant had to consult other doctors and we also hold that there are deficiencies on the part of the o.ps which compelled the complainant to file this instant case as such the o.ps are liable to pay the compensation and litigation cost to the complainant.
Hence, it is ordered.
Hence, it is
ordered.
that the case no.41/2018 is allowed on contest with cost against o.p. no. 2 and ex-parte against o.p. nos. 1 and 3 with cost. O.ps are jointly and/or severally directed to refund Rs.21,550/- (Rupees Twenty One Thousand One Hundred Five Hundred and Fifty) only to the complainants and are further directed to pay the amount of Rs.5,000/- (Rupees Five Thousand) only as compensation for harassment and mental agony as well as Rs.5,000/- (Rupees Five Thousand) only for litigation cost within only within 30 days from the date of communication of this order, i.d. an interest @ 8% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.
