CC No.1720/2015

Filed on: 09.10.2015

Disposed on: 17.06.2017

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE 17^th DAY OF JUNE 2017

CONSUMER COMPLAINT NO.1720/2015

PRESENT:

Sri. H.S.RAMAKRISHNA B.Sc., LL.B.

       PRESIDENT

              Smt.L.MAMATHA, B.A., (Law), LL.B.

                     MEMBER

                                     V/S

ORDER

BY SMT.L.MAMATHA, MEMBER

1. This Complaint was filed by the Complainants on 09.10.2015 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Parties to refund Rs.3,00,000/- along with interest amount 18% p.a. from the date of receipt till the date of payment and further direct the Opposite Parties to pay a sum of Rs.1,50,000/- as compensation towards mental agony, hardship, deficiency and negligence of service rendered by the Opposite Parties and further direct the Opposite Parties to pay cost of these proceedings and other reliefs.
2. The brief facts of the complaint as under:

In the complaint, the Complainants states that the Complainants submit that their marriage had taken place about 20 years before and they had no issues out of the marriage.  The Complainants further submit that the 1^st Opposite Party had given advertisements in the T.V.Channels, and also through various other medias that Mr.K.T.Gurumurthy of the 1^st Opposite Party have gained knowledge, expertise and authenticated in IUI, IVF, ICSI, TESA, MESA, PESA and many more specialties.  The Complainants further state that the 1^st Opposite Party had represented to the Complainants that Dr.K.T.Gurumurthy is a qualified Doctor and that he is a senior and pioneer, in infertility science and that he is running the clinic by name Base Fertility Poorva Deeksha Advanced Clinical Laboratory, Shrushti Global Foundation,   ISIS Medicare along with the 2^nd of Opposite Party mentioned and that he is running all the above said firms in different places.  The Complainants further state that the 1^st and 2^nd Opposite Party represented to the Complainants that though he collects money from the customers, he would issue the receipts in different firm name stating that it all belonged to him and that only the treatment would takes place at different places.  The Complainants further state that the 2^nd Opposite Party is also represented by Dr.K.T.Gurumurthy and Dr.Chandan, who represented to the Complainants that both of them are Senior Doctors and that they are one of the associates in the Base Fertility package schemes and that both of them had assured 100% fertility for the couples i.e., the Complainants and as per the instructions of Dr.K.T.Gurumurthy, the Complainants underwent treatments and the Complainants accordingly agreed to pay a sum of Rs.50,000/- towards egg donation, Rs.50,000/- towards miscellaneous expenses and further agreed to pay a sum of Rs.2,00,000/- towards package amount.  The Complainants further submit that believing the words of the Opposite Parties and also being convinced of the advertisements given by the 1^st and 2^nd Opposite Parties, the Complainants consulted the Opposite Parties in the month of June 2012 and after deposit of cash amount of Rs.50,000/- and Rs.2,00,000/- on 15.06.2012 by way of cheque bearing No.730075 drawn on State Bank of Mysore, S.R.Nagar Branch, Bangalore, the Complainants were given treatment.  As already stated above, the Complainants had paid a sum of Rs.50,000/- for egg donation and Rs.2,00,000/- for undergoing treatment, apart from paying an amount of Rs.50,000/- towards consultancy fee and other expenditure.  The Complainants state that after insemination, the same was placed in the body of 2^nd Complainant Smt.Shobha Ramesh and she was treated at Rajarajeshwarinagar.  The Complainants state that they have followed all the instructions and advices of the 1^st and 2^nd Opposite Parties, however after 15 days of treatment, the 1^st and 2^nd Opposite Parties had told the Complainants that the treatment has failed and further sent the Complainants without refunding the said amount or without any assurances. The Complainants state that though initially the 1^st and 2^nd Opposite Parties had assured 100% results, later the 1^st and 2^nd Opposite Parties did not take the matters seriously and told the Complainants that it has failed. The Complainants further submit that the 1^st and 2^nd Opposite Parties had assured the couple that they will definitely get the child, however the Opposite Parties had cheated the Complainants without honoring their words.    The Complainants submit that they had followed all the instructions and follow-ups as per the advice of the 1s and 2^nd Opposite Parties, however the Opposite Parties have failed to keep up their words.  The Complainants submit that whenever the Complainants had approached the 1^st and 2^nd Opposite Parties seeking for refund of the amount spent by them along with damages/interests or to fulfill their promise, the 1^st and 2^nd Opposite Parties were giving evasive answers stating that they are very much experienced in the field and are influenced and threatened the Complainants that if they persisted them to refund the amount, they would use their money and muscle power.  The Complainants submit that due to dereliction of duty and negligence on part of the 1^st and 2^nd Opposite Parties, the Complainants have suffered immensely both loss of money, mental agony, harassment and loss of professional income to the extent of Rs.50,000/- in the hands of the Opposite Parties.  The Complainants submit that the 1^st and 2^nd Opposite Parties had adopted illegal methods of medical treatment by giving false reports and statements thereby misleading the Complainants to grab money with an intention to make unlawful gain by exploiting the innocence and ignorance of the Complainants.   The Complainants submit that in the meantime on 21.06.2015, they found a report in Vijaya Karnataka Newspaper, wherein a publication was made that the Hon’ble Consumer Forum, Bangalore, has imposed penalty of Rs.34,00,000/- against the said K.T.Gurumurthy, for similarly cheating the couples of child and thereby swallowed the money.  The Complainants came to know that the 1^st and 2^nd Opposite Parties have adopted unfair trade practice without having the academic qualifications and authentication on the subject and further falsely misrepresented to several gullible customers with an intention to grab the money.  The Complainants submit that such an unethical, unlawful method which is against the medical practice norms and guidance, have been followed by the 1^st and 2^nd Opposite Parties to cheat several clients and grabbed of their hard earned money by giving false promises, assurances, wrong prescriptions and treatments.  The Complainants further submit that 1^st Complainant had approached the 1^st and 2^nd Opposite Parties after Newspaper report demanding for refund of the amount for the acts of deficiency and negligence in service by the above mentioned, however he has bluntly refused and further threatened the Complainants with dire consequences.  The Complainants have paid the money by borrowing the amount by pledging the gold ornaments with a hope of getting the child and due to the deficiency of service rendered to the Complainants, they have suffered huge financial loss apart from undergoing mental and physical agony.   The Complainants submit that they also came to know that several persons have lodged a complaint to the police and when the Complainants had also approached the Police, the said police had told the Complainants to approach an advocate stating that they are put behind the bars in several cases already registered against the 1^st and 2^nd Opposite Parties.  The Complainants submit that they had met an advocate and as per his instructions, they have issued the above notice on 10.07.2015, calling upon the 1^st and 2^nd Opposite Parties, to compensate them of Rs.4,50,000/- which includes the package amount of Rs.2,00,000/-, Rs.1,00,000/- which they have paid towards miscellaneous expenses and compensation of Rs.1,50,000/- for undergoing mental agony and torture along with interest from the date of payment to till the date of actual repayment.  The Opposite Parties had failed to claim the said notice sent under RPAD and therefore the said RPAD covers had returned as “Not Claimed R/S”.  Hence, this complaint.

3. Even though, notice was served on the Opposite Parties, Opposite Parties fails to put their appearance.  Hence Opposite parties are placed ex-parte.
4. In support of the complaint, the Complainant No.1 has filed his affidavit by way of evidence.  Heard the arguments of the Complainant.
5. The points that arise for consideration are:-

1. Whether the Complainant has proved the alleged deficiency in service by the Opposite Parties?

2. If so, to what relief the Complainant is entitled ?

6. Our findings on the above points are:-

                POINT (1):- Affirmative

                POINT (2):- As per the final Order

REASONS

7. POINT NO.1:- On perusing the pleadings along with documents produced by the Complainants, it reveals that 1^st Opposite Party had represented to the Complainants that Dr.K.T.Gurumurthy is a qualified Doctor and that he is a senior and pioneer in infertility science and that he is running the clinic by name Base Fertility, Poorva Deeksha Advanced Clinical Laboratory, Shrushti Global Foundation, ISIS Medicare along with the 2^nd of Opposite Party. The Complainants submit that their marriage had taken place about 20 Years before and they had no issues out of the marriage.  The Opposite Parties have given advertisements in the T.V.Channels and also through various other medias that Dr.K.T.Gurumurthy of the 1^st Opposite Party have gained knowledge, expertise and authenticated in IUI, IVF, ICSI, TESA, MESA, PESA and many more specialties.  Based on the advertisements of the Opposite parties, Complainant approached Opposite Parties.  The 2^nd Opposite Party is represented by Dr.K.T.Gurumurthy and Dr.Chandan who represented to the Complainants that both of them are Senior Doctors and that they are one of the associates in the Base Fertility package schemes and that both of them had assured 100% fertility for the couples.  As per the instructions of Dr.K.T.Gurumurthy, the Complainants underwent treatments and the Complainants agreed to pay the amount demanded by Opposite Parties.  To substantiate this fact, the Complainant No.1 filed his affidavit, in his sworn testimony, he reiterated the same and also in support of his testimony, he produced Bank Statements.  By looking into these documents, it clearly shows that the Complainants consulted Opposite Parties in the Month of June 2012 and underwent treatment and paid Rs.50,000/- by cash for egg donation and Rs.2,00,000/-.  On 15.06.2012 by way of cheque bearing No.730075 drawn on State Bank of Mysore, S.R.Nagar Branch, Bangalore for undergoing treatment, apart from that the Complainants paid Rs.50,000/- towards consultancy fee and other expenditure.  The Opposite Parties have assured 100% fertility for the Complainants.   After insemination, the same was placed in the body of 2^nd Complainant and she was treated at Rajarajeshwarinagar.  Though the Complainants followed all the instructions and advices of the 1^st and 2^nd Opposite Party, after 15 days of treatment, the Opposite Parties had told the Complainants that the treatment has failed and sent the Complainants without refunding the said amount or without any assurances. The Opposite Parties had assured the Complainants that they will definitely get the child.   But the Opposite Parties failed to keep up their words.  By all these it is very clear that the Opposite Parties had not rendered good service to the Complainants.  This evidence also remains unchallenged.  If at all the Opposite Parties have rendered good service to the Complainants, the Opposite Parties ought to have produced relevant evidence.  But there is no such evidence.  Therefore, from the evidence available on records, it is clearly goes to show that the Opposite Parties had failed to keep up their words.  The Complainants requested the Opposite Parties to refund the amount.  But the Opposite Parties had not bothered to refund the amount.  Due to the deficiency act of the Opposite Parties the Complainants have suffered loss of money, mental agony, harassment, physical agony.  Meantime, on 21.06.2015 the Complainants found a report in Vijayakarnataka Newspaper wherein publication was made against the Opposite Parties.  The Complainants approached the 1^st and 2^nd Opposite Parties after newspaper report demanding for refund of the amount for the acts and deficiency and negligence in service by the Opposite Parties.  But the Opposite Parties refused to refund the amount.  The Complainants paid money by borrowing the amount by pledging the gold ornaments with a hope of getting the child.  But the Opposite Parties have rendered deficiency of service to the Complainants.  Therefore, it is proper to accept the contention of the Complainants that the Opposite Parties have neither rendered good service nor refund the amount.  The Complainants issued legal Notice on 10.07.2015 through their counsel.  The said Notice served to the Opposite Parties.  But the Opposite Parties neither replied the Notice nor fulfill the demand of the Complainants.  To disbelieve the version of the Complainants nothing was on record.  In spite of repeated requests, the Opposite Parties never bothered to fulfill the demand of the Complainants.  Thereby, this clearly shows that there is deficiency in service on the part of the Opposite Parties. Hence, this point is held in affirmative. 

8.  POINT NO.2:- In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The complaint is allowed holding that there is deficiency in service by the Opposite Parties.

The Opposite Parties are directed to refund the amount of Rs.3,00,000/- along with interest at 15% p.a. from the date of payment till the date of realization. 

The Opposite Parties are further directed to pay a sum of Rs.1,00,000/- as compensation for mental and physical agony to the Complainants. 

The Opposite Parties are also directed to pay a sum of Rs.5,000/-towards cost of this litigation to the Complainants.

The Opposite Parties are granted 30 days’ time from the date of this Order to pay aforesaid amount to the Complainant.

Supply free copy of this order to both the parties. 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 17^th day of June 2017)

        MEMBER                                              PRESIDENT 

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Sri.C.Ramesh, who being the 1^st Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. Copy of the Bank Statement
2. Copy of the Paper Publication dt.21.06.2015
3. Copy of e Legal Notice dt.10.07.2015
4. Copies of the returned RPAD Covers

Witness examined on behalf of the Opposite Parties:

                             Nil

List of documents filed by the Opposite Party:

                             Nil

          MEMBER                                                                PRESIDENT