Date of Filing:10/09/2015
Date of Order:11/01/2017
ORDER
BY SRI.H.JANARDHAN, 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.2,00,000/- with interest @ 18% per annum from the date of payment till realization, Rs.50,000/- towards medical treatment and travelling expenses and Rs.5,00,000/- towards mental agony along with Rs.50,000/- 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 were married and they did not have any issues. Complainants states that O.P.No.1 was given the advertisement in the T.V channel stating that, he is senior and pioneer in fertility science and he is running the clinic by name Base Fertility and also he was claiming to be having expertise in the field of IUI, IVF, ICSI, TESA, MESA, PESA etc. Further averred that, O.P No.2 is also a firm which is represented by Dr. K.T.Gurumurthy and he is also one of the associate in the Base Fertility package scheme and assuring 100% fertility through his treatment to the couples to those who are having no issues. Hence the complainants lured by the advertisement given by the O.P approached the O.Ps in order to have issues with their treatment and the O.Ps assured 100% result to the complainants. O.Ps have started treatment and complainants paid consultancy fees and spent nearly Rs.2,00,000/- and paid to the O.P No.1 and followed all the instructions and medical checkups as per the advice of the O.Ps. Further the complainants states that, again complainants were instructed to pay additional sum to the O.Ps and O.Ps have issued the receipts in different heads to the O.Ps firm against the payment made by the complainants. Further states that, when the complainants objected for the additional amount collected by the O.Ps and the O.Ps informed the complainants that, they are issuing the receipt against the payments on different heads only for the purpose of evading tax. The Complainants further stated that, they were treated more than 10 months and finally there was no positive result with the treatment of O.Ps. Hence, the complainants asked every time regarding the treatment and the result of the treatment but, the O.Ps have given the evasive answers. Hence the complainant finding no way suffered with head ache, back pain, sleepiness and irregular periods due to the improper, immature and illegal medical treatment of the O.P No.1 and his prescriptions. The complainant No.1 suffered loss and injury to her health and suffered with irregular period and obesity and the complainant No.2 suffered with gastric trouble, obesity and also the complainants have suffered mental agony harassment on account of improper treatment.
3. The complainants further submit that, O.P No.1 has adopted illegal methods of medical treatments and use to give the false lab reports to the complainants to grab money by giving false reports and statements and to get the unlawful gain out of the ignorance of the complainants. Thus on account of dereliction of duty and negligence on the part of the O.Ps, the complainants have suffered mental agony, harassment and loss of professional income. Further the complainants alleged that, they have paid the money by borrowing the amount with a hope of getting the children but due to deficiency of service in giving treatment the complainants have incurred huge loss and complainants came to know through media that O.Ps have adopted unfair trade practice without having the academic qualifications and cheated the people for money by giving false advertisement. Hence this complaint.
4. Upon issuance of notice to O.P No.1 and 2 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 and 2 did not appear nor contested the matter and hence O.P. No.1 and 2 were 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.2,00,000/- 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 one year treatment and multiple follow-ups as advised by the O.P.No.1 there is no 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.P No.1 and his prescriptions. The complainant No.1 suffered loss and injury to her health and suffered with irregular period and obesity and the complainant No.2 suffered with gastric trouble, obesity and also the complainants have suffered mental agony harassment on account of improper treatment.
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, complainant incurred expenditure of Rs.2,00,000/- towards their treatment and paid to the O.Ps. On perusal of the receipt it clearly discloses O.Ps collected Rs.1,00,000/- on 24.8.2013 and issued the receipt stating that donation receipt bearing No.605 also on perusing receipt bearing No.711 dated 10.9.2013 complainants once again paid Rs.1,00,000/-. 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 receipt dated 8.8.2013, 2.9.2013, and these receipts discloses that complainants collected once Rs.1,800/- for the testing as mentioned in the receipts and Rs.700/- is collected for scanning and Rs.1,000/- is collected for other tests as mentioned in the said receipts.
10. The O.Ps did not given any literature about the line of treatment in order to achieve the results. Further to contradict all the allegations for the reasons best known to the Ops inspite of paper publication, who remained absent throughout the proceedings and consequently proceeded to place exparte. 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 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 complaints having a notice of the observation, wherein those complaints the question of academic qualification not proved by the O.Ps. The complainants also produced the copies of police complaint lodged against the O.Ps and FIR and other documents. 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.2,00,000/- 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.2,00,000/- 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 opinion that, the O.Ps have no right to collect donations forcefully from the complainants. Hence we direct the O.Ps to refund of Rs.2,00,000/- the amount paid towards donation and also directed to pay 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.2,00,000/- 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 11th Day of January 2017)
MEMBER MEMBER PRESIDENT
