CC No.1231.2015

Filed on 01.01.2016

Disposed on.28.11.2018

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BANGALORE – 560 027.

DATED THIS THE 28^th DAY OF NOVEMBER 2018

CONSUMER COMPLAINT NO.1231/2015

PRESENT:

Sri.  H.S.RAMAKRISHNA, B.Sc., LL.B.,

                             PRESIDENT

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

                          MEMBER,

        V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 01.01.2016 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Parties to pay Rs.5,00,000/- along with 18% interest per annum till the actual payment, to pay Rs.50,000/- spent by the Complainant towards treatment, medicine and travelling expenses,  to pay Rs.5,00,000/- for mental and physical agony caused to the Complainant, to pay Rs.50,000/- towards the cost of litigation and other expenditure and to grant any other reliefs.

2.       The brief facts of the complaint can be stated as under:

In the Complaint, the Complainant alleges that she was married with B.Bhogaraju on 11.5.1990 and they have no children. Though they were leaving happy, the only mental agony was that they did not have children. The 1^st Opposite Party has given the advertisement in the TV channels that he has gained knowledge and authenticated in IUI, IVR, ICSI, TESA, MESA, PESE  and many other specialties which are mentioned in the brochure. The 1^st Opposite Party stated to be a senior and pioneer in fertility science and he is running the clinic by name Base Fertility, Poorva Deeksha advanced clinical Laboratory, Shrusti Global Foundation along with the Opposite Party No.2 and they are running all the above firms in different place and they issues the receipts and transactions are at the difference places and they collects money and use to the issue the receipts in different places and different receipts and bills of their different units. The Complainant submits that Sri.Gurumurthy K.T., Managing Director of the 2^nd Opposite Party had advertised himself to be senior doctor and he is also one of the associated in the Base Fertility package scheme and both are working together and working with the 1^st Opposite Party and both are assuring 100% fertility for the couples who have paid the package and the couple must get the child with their treatment and through surrogacy.

3.       The Complainant submit that the Complainant who had no children and who were bearing the brunt of the society, believing the words and the advertisements given by the Opposite Parties approached for the treatment. The Complainant travelled all the way from Nelmangala and with the assurance of the Opposite Party that they will definitely get the children if they have the treatment with the Opposite Parties. Believing the words of the Opposite Parties, the Complainant has consulted the Opposite Party in the year 2013 and the Opposite Party No.1 has started counseling, treatment on the same day and the Complainant has paid consultancy fees and other expenditure and the Complainant has under constant follow up with the 1^st Opposite Party and the Complainant followed all the advices given by the 1^st Opposite Party and they have spent huge amount of Rs.2,50,000/- on 28.11.2013 and Rs.2,50,000/- on 28.11.2013 above to the 1^st Opposite Party. The Opposite Party had asked the Complainant to take the package of Rs.12,00,000/- and accordingly, the Complainants have opted for the said package, however had paid the advance amount of Rs.5,00,000/-. The condition for the treatment with the Opposite Parties is that the Complainant has to pay the total package amount to the Opposite Parties and the Opposite Parties have assured 100% result with their treatment and the Complainant has paid maximum amount to the Opposite Parties as per their demand because of the assurance of 100% result given by the Opposite Parties. The Complainant has followed all instructions and medical checkups as per the advice of the Opposite Parties and the Complainant has spent nearly Rs.20,000/- and above for the treatments and lab tests and other incidental charges as per the advice of the Opposite Parties. 

4.       The Complainant submit that the Opposite Parties have called the Complainant and they have assured the couple and falsely assured the Complainant that surrogacy would become successful and they will definitely get the male child if they pay the package amount. Believing the words of the Opposite Parties and paid the maximum package amount and additional treatment and other charges to the Opposite Parties and the Opposite Parties had issued the receipts in different heads of the Opposite Party firm as donations to avoid income tax and to cheat the Complainant for the total amount. When the Complainant asked the reasons, he gave evasive replies and the Complainant should not bother for the receipt. Believing the version of the Opposite Parties, the Complainant has paid the amounts.

5.       The Complainant had followed all the instructions and follow-ups as per the advice of the Opposite Parties and they were treated so many months and finally there was no positive result with the treatment of the Opposite Parties. The Complainant was assured falsely that surrogacy would become successfully, however when the Complainant got verified from the other doctors everything including the treatment given was held as fake and the Opposite Parties had treated the Complainant with duplicate medicines. Further staffs were also not qualified as per the norms of the medical line of treatment. On account of dereliction of duty and negligence on part of the Opposite Parties, the Complainant has suffered mental agony, harassment and loss of business income of Complainant which the Complainant is entitled to compensation and refund of amount and other incidental charges incurred by the Complainant. Meantime in the month of January on 17.1.2014 at about 9.30 pm on TV9 broad casting it came to the notice of the Complainant that the Opposite Parties have adopted unfair trade practice without having the academic qualifications and authentication on the subject the Opposite Parties have adopted the illegal methods of treatments which is different with the line of treatment and they have cheated the people for money by giving false advertisements and treatments.

6.       The Complainant used to travel from Nelmangala to Bangalore for treatment and have incurred a huge sum as incidental charges. The Complainant has approached the Opposite Parties for refund of amount for deficiency in service and false treatments and the Opposite Parties have bluntly refused and moreover they have threatened with dire consequences to the Complainant. The Complainant has paid this money by borrowing the amount with hope of getting the children and due to the deficiency in service and unline medical treatment, the Complainant has incurred huge loss and mental and physical agony.   Hence, this Complaint.    

7.       In response to the notice, the Opposite Parties put their appearance through their counsel and filed their version. In the version pleaded that the 1^st Opposite Party was one of the organization established in the year 2012 which was providing infertility treatment for couples as per the ICMR guidelines. The 1^st Opposite Party runs under the specialized doctors and well trained staff with legal department. The 1^st Opposite Party works for the infertile couples by providing Assisted Reproductive Technology (ART) treatments. The 1^st Opposite Party was purely and completely into infertility treatment. The 1^st Opposite Party was running with required license provided by the concerned authority such as trade license from the BBMP, PC & PNDT from the District Health and Family Welfare Authority, KPME from the District Health and Family Welfare Authority, Bio Medical Waste Treatment and Disposal from SembRamky, Pollution License from the Pollution Control Board, Government of Karnataka etc., All medical procedures was been handled by the particular specialized doctors legally and the services provided by the 1^st Opposite Party for infertility couples was as per the medical reports by these licensed doctors. The 2^nd Opposite Party was established in the year 2009 and is a complexly Non-Government Organization (NGO), which was into social activities running legally. The 2^nd Opposite Party was supporting the                                1^st Opposite Party by handling entire third party reproduction like Egg donor, sperm donor and surrogacy as per the ICMR guidelines. This panel includes legal advisors, qualified and professionally well trained counselors. The 2^nd Opposite Party is neither a clinic nor a hospital, there was no any medical activities been carried in this premises.

8.       The Opposite Parties submit the individual K.T.Gurumurthy is not a licensed doctor but holds an honorary doctors degree in embryology. The said Mr.Gurumurthy is but a mere businessman who established the Opposite Party organizations, hired qualified and professional doctors who in turn provided their prescribed medical treatments and services. The patients used to approach the 1^st Opposite Party for infertility treatment by TV advertisements and also from the word of mouth/references by other patients. Neither the Opposite Parties nor its staff ever forced couples to take treatment but in turn have explained the services and the medical treatment procedures available. The patients have but merely on their own notion chosen to follow the medical procedures as per the doctor’s suggestion according to their medical reports. The Opposite Parties were running without any issues, but some fake news was deliberately telecasted in various TV channels to defame the success of the Opposite Parties. Though the said patients were misguided, they continued the treatment after discussion with the concerned department of the Opposite Party’s organization. After the controversy rose in high level, the misguided patients approached the Forum for refund of amount paid by them even though there was no deficiency or negligence in the services provided by the Opposite Parties till then.

9.       The Opposite Parties submit that as per the Complaint, the patient has alleged that because of the treatment procedure and medication she had suffered physically and mentally which is not a fact and it has been alleged as an afterthought being coerced by the fake issue broadcasted in TV channels and not while she were in the treatment or under medical procedures. Further, it is submitted that nowhere the Opposite Parties have advertised nor given any statement stating that they assure 100% fertility for couples who have paid for the package offered but have stated that 100% solutions for infertility treatments are available. Since infertility is caused with male and female infertility problems like ovum, sperm problem, uterus problem, the Opposite Parties were providing all of the solutions like egg donation, sperm donation, surrogacy, laparoscopic surgery, IUI, IVF, ICSI etc., under one roof so the Opposite Parties have stated that it provides 100% solutions. There is no hospital which provides complete solutions for male infertility, female infertility in this manner, but except for the Opposite Parties who were providing all the solutions for infertility. Hence, the statement 100% solutions for infertility but never assured 100% fertility for couples.  The Opposite Parties submit that the cost of one cycle of IVF was approximately Rs.2,00,000/- which includes stimulations procedures/trials and the patient is not assured or may not get results in one cycle. So the Opposite Parties voluntarily supported the patients by providing a low cost package system which includes trials in 3 to 4 cycles of IVF treatments. Whatever package amount paid by the patient included entire IVF procedure for 3 to 4 cycles that ensured better percentage of chances for a positive result. There are records with the Opposite Parties to prove that many patients have got success by getting positive results in similar packages and more than 7500 patients are registered under the Opposite Parties and maximum number of patients have got positive results as per their data base. It is only after the issue of fake news in TV channels arose that few of them have tried to take advantage and allege negligence and deficiency in service by the Opposite Parties just in order to make a fast buck. Agitating patients such as the Complainant has already used the medical treatments and services provided by the Opposite Parties but after the fake TV broadcasts, they stopped further treatment in the next cycle that should have been followed.  The Complainant failed to follow the procedure prescribed by the 1^st Opposite Party. The said Complainant was given a clear instructions on how to consume the medicines and the methodology involved in taking the fertility treatment which instructions she has failed to follow. Due to her mishandling and not utilizing the medication and availing the treatment properly, the same has not worked on the body of the Complainant.   Nowhere in the world is there a guarantee or warranty on any medical procedure as it involves multiple factors not in control by anyone except the patient herself.

10.     The Opposite Parties further reiterated that the package purchased by the Complainant includes stimulations procedures/trials and the patient is never assured and may not get results in one cycle. Further, the Complainant has already used the medical treatments and services provided by the Opposite Parties, but abruptly stopped further treatment in the next cycle that should have been followed. The Complainant had ignored and abandoned the expert opinion and procedures prescribed by the doctors at the Opposite Party organization. The Complainant after the fertility treatment by the doctors at the 1^st Opposite Party, they never visited nor met the doctors at the Opposite Parties thereafter. In view of the allegation of 100% guarantee, the Opposite Parties have dutifully attended to the Complainant and explained to the Complainant that there are no guarantees in any medical procedures let alone a 100% guarantee at fertility clinics. The doctors of the 1^st Opposite Party has fine-tuned the time-tested fertility procedures and have confirmed that the fertility treatment works for all and also instructed the Complainant about the manner in which the same should be followed. However, after undergoing the first two cycle of fertility treatment, the Complainant abandoned next cycle of treatments, but instead approached this Forum alleging medical negligence.

11.     The Opposite Parties submit that most of the receipts regarding the payment produced by the Complainant in the present Complaint are not relevant. The Complainant willfully with an intention of unlawful gain have produced irrelevant receipts. There is no deficiency in service on the part of the Opposite Parties since the 1^st Opposite Party has fully carried out the required fertility procedure. It was the Complainant failed to follow the prescribed fertility procedure nor did she approach the 1^st Opposite Party for any advice or undergo the next cycle in the fertility procedure as prescribed. The fertility treatment and procedure being fairly modern and complex in nature require the opinion of an expert and all medical negligence cases have to be proved on the basis of expert evidence which in this case the Complainant has miserably failed to demonstrate, the failure in achieving a positive result was infact directly related to the negligence in the prescribed treatment or that there was any deficiency in service provided by the Opposite Parties per se. Hence, the claim devoid of expert opinion is mechanical in its approach makes the remedy illusionary. The Opposite Parties have not caused any deficiency in service nor been negligent in their obligations. The Complainant come up with an unsustainable ground of 100% guarantee, even which, does not entitle the Complainants to rescind the contract as agreed to between the parties and under such circumstances, the Complaint is liable to dismissed. Further, the nature of the relief sought to in the Complaint is not maintainable.   

12.     The Opposite Parties submits that they reserves the right to urge new grounds or produce relevant documents at the later stage of the proceedings if required.  There is no allegation made by the Complainant regarding the deficiency in service by the Opposite Parties, but the only contention of the Complainant is that they did not get the positive result from the treatment given by the Opposite Parties. There is no proof of 100% assurance/guarantee by the Opposite Parties. On these grounds and other grounds prays for dismissal of the Complaint.

13.     The Complainant, Smt.Kamala filed her affidavit by way of evidence and closed her side.  Heard Argument of Complainant.

14.      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?

15.     Our findings on the above points are:-

                     POINT (1)           :- Affirmative

POINT (2)             :- As per the final order

REASONS

16.   POINT NO.1:- It is the case of the Complainant that the                     1^st Opposite Party had given the advertisement in the TV channels that he has gained knowledge and authenticated in IUI, IVR, IVF, ICSI, TESA, MESA, PESE  and many other specialties which are mentioned in the brochure.  Sri.Gurumurthy K.T., Managing Director of the                       2^nd Opposite Party had advertised himself to be senior doctor and he is also one of the associated in the Base Fertility package scheme and both are working together and working with the 1^st Opposite Party and both are assuring 100% fertility for the couples who have paid the package and the couple must get the child with their treatment and through surrogacy.  To substantiate this fact, the Complainant Smt.Kamala in her sworn testimony, she has reiterated the same.  This evidence of the Complainant has not been challenged or denied by the Opposite Parties.  Therefore, it is proper to accept the contention of the Complainant that the 1^st Opposite Party had given the advertisement in the TV channels and also by issuing Brochure mentioning that he had gained knowledge and authenticated in IUI, IVR, IVF, ICSI, TESA, MESA, PESE  and many other specialties. 

17. The defence of the 1^st Opposite Party is that the                              1^st Opposite Party was one of the organization established in the Year 2012 which was providing infertility treatment for couples as per the ICMR guidelines. The 1^st Opposite Party runs under the specialized doctors and well trained staffs with legal department. The 1^st Opposite Party works for the infertile couples by providing Assisted Reproductive Technology (ART) treatments. The                                 1^st Opposite Party was purely and completely into infertility treatment.   The 1^st Opposite Party was running with required license provided by the concerned authority such as trade license from the BBMP, PC & PNDT from the District Health and Family Welfare Authority, KPME from the District Health and Family Welfare Authority, Bio Medical Waste Treatment and Disposal from SembRamky, Pollution License from the Pollution Control Board, Government of Karnataka etc.   In support of their defence, Opposite Parties have not lead any evidence that the 1^st Opposite Party runs under the specialized doctors.   In that event, they could have produced the list of document, specialized doctors and well trained staff and also the Opposite Parties have not produced any documentary evidence to show that they are running with required license provided by the concerned authority such as Trade License from the BBMP, PC & PNDT from the District Health and Family Welfare Authority, KPME from the District Health & Family Welfare Authority, Bio Medical Waste Treatment & Disposal from SembRamky, Pollution License from the Pollution Control Board, Government of Karnataka, etc.   Thereby it is not proper to accept the defence of the 1^st Opposite Party.

18. It is further case of the Complainant that the Complainant had no children, believing the words and the advertisements given by the Opposite Parties approached for the treatment. The Complainant’s assurance of the Opposite Party they will definitely get the children if they have the treatment with the Opposite Parties. Believing the words of the Opposite Parties, the Complainant has consulted the Opposite Party in the Month of November 2013 and the Opposite Party No.1 has started counseling, treatment on the same day and the Complainant has paid consultancy fees and other expenditure and the Complainant has under constant follow up with the Opposite Party No.1 and the Complainant followed all the advices given by the 1^st Opposite Party, and they have spent huge amount of Rs.2,50,000/- on 28.11.2013 and Rs.2,50,000/- on 28.11.2013 above to the 1^st Opposite Party.  The Opposite Party had asked the Complainant to take the package of Rs.12,00,000/- and accordingly the Complainant has opted for the said package, however had paid the advance amount of Rs.5,00,000/-.   The Complainant has to pay the total package amount to the Opposite Parties and the Opposite Parties have assured 100% result with their treatment and the Complainant has paid maximum amount to the Opposite Parties as par their demand because of the assurance of 100% result given by the Opposite Parties.    To substantiate this fact, the Complainant in her sworn testimony, she has reiterated the same and produced receipt bearing No.5342 dated.28.11.2013 under this receipt, Opposite Party No.1 had received Rs.2,50,000 from the Complainant Smt.Kamala, under receipt No.1144 dated.28.11.2013 the Opposite Party No.2 had received sum of Rs.2,50,000/- from the Complainant Smt.Kamala,  so altogether the Opposite Party No.1 & 2 had received sum of Rs.5,00,000/- and also the Complainant had produced receipts issued by the Opposite Party No.1 & 2 for giving treatment.  Even this evidence of the Complainant has not denied or disputed by the Opposite Parties.  Thereby, it is proper to accept the contention of the Complainant that the Complainant had paid a sum of Rs.5,00,000/- to the Opposite Parties No.1 and 2.

19. It is the defence of the Opposite Parties, Opposite Party No.2 no Non-Government Organization (NGO), which was into social activities running legally. The 2^nd Opposite Party was supporting the 1^st Opposite Party by handling entire third party reproduction like Egg donor, sperm donor and surrogacy as per the ICMR guidelines. This panel includes legal advisors, qualified and professionally well trained counselors. The 2^nd Opposite Party is neither a clinic nor a hospital, there was no any medical activities been carried in this premises.  In support of their defence, Opposite Parties have not lead any evidence.  Thereby it is not proper to accept the defence taken by the Opposite Parties.  On the other hand, even by looking into the defence, it is clear that Dr.K.T.Gurumurthy is not a licensed doctor but holds an honorary doctors degree in embryology. The said Mr. K.T.Gurumurthy is but a mere businessman who established the Opposite Party organizations, hired qualified and professional doctors who in turn provided their prescribed medical treatments and services. So from this defence itself, it is clear that Dr.K.T.Gurumurthy is Managing Director of the Opposite Party No.2 is not licensed doctor and also to establish that Dr.K.T.Gurumurthy holds an honorary doctors degree in embryology is not been proved by the Opposite Parties.  As stated earlier, the Opposite Parties failed to establish that the Opposite Party organizations, hired qualified and professional doctors who in turn provided their prescribed medical treatments and services.

20. It is further case of the Complainant that the Complainant had followed all instructions and medical checkups as per the advice of the Opposite Parties and the Complainant has spent nearly Rs.20,000/- and above for the treatments and lab tests and other incidental charges as per the advice of the Opposite Parties.  Finally the Opposite Parties have called the Complainant and they have assured the couple and falsely assured the Complainant that IVF would become successful and they will definitely get the male child if they pay the package amount. Believing the words of the Opposite Parties and paid the package amount and additional treatment and other charges to the Opposite Parties and the Opposite Parties had issued the receipts in different heads.  The Complainant has followed all the instructions and follow-ups as per the advice of the Opposite Parties and they were treated so many months and finally there was no positive result with the treatment of the Opposite Parties. The Complainant was assured falsely that surrogacy would become successfully, however when the Complainant got verified from the other doctors everything including the treatment given was held as fake and the Opposite Parties had treated the Complainant with duplicate medicines.   To substantiate this, the Complainant in her sworn testimony, she has reiterated the same and also produced bills, which clearly goes to show that Smt.Kamala, as per advice of the Opposite Parties followed medical checkup.  Inspite of that as promised by the Opposite Parties do not healed any result because the Opposite Parties have no experts in treating IUI, IVR, IVF, ICSI, TESA, MESA, PESE and many other specialties.  For that reason, the Complainant failed to get child assured by the Opposite Parties by spending huge amount of Rs.5,00,000/-.   If at all the Opposite Parties have experts in the field of IUI, IVR, IVF, ICSI, TESA, MESA, PESE and many other specialties, definitely they have good result by getting a child for the Complainant.  Thereby the Opposite Parties failed to render proper service to the Complainant.  Inspite of receiving the huge amount and also Opposite Parties have adopting unfair trade practice.  Hence, this point is held in affirmative.

21. In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The complaint is allowed holding that there is deficiency of service on the part of the Opposite Parties 1 and 2.

The Opposite Parties 1 and 2 are directed to pay a sum of Rs.5,00,000/- to the Complainant along with interest at 18% p.a. from 28.11.2013, till payment.

The Opposite Parties 1 and 2 are directed to pay compensation of Rs.50,000/- for causing mental agony to the Complainant.

The Opposite Parties 1 and 2 are liable to pay a sum of Rs.5,000/- as cost of this litigation to the Complainant.

The Opposite Parties 1 and 2 are directed to comply the order within 30 days from the date of this order.

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, dt.28^thday of November 2018).

  MEMBER                                                               PRESIDENT

LIST OF WITNESSES AND DOCUMENTS

Witness examined on behalf of the Complainant:

1. Mrs.Kamala, who being the Complainant has filed her affidavit.

List of documents filed by the Complainant:

1. Copy of medical prescriptions and bills

Witness examined on behalf of the Opposite Parties:

NIL

List of documents filed by the Opposite Party:

NIL

MEMBER                                                              PRESIDENT