CC No.1816.2015

Filed on 31.10.2015

Disposed on.11.04.2018

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE 11^th DAY OF APRIL 2018

CONSUMER COMPLAINT NO.1816/2015

PRESENT:

Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

        PRESIDENT

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

                      MEMBER

                                       V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainants on 31.10.2015 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Parties No.1 to 4 to compensation of Rs.5,00,000/- to each Complainants, to refund sum of Rs.5,94,647/- towards false treatment with interest at 24% p.a. from 18.09.2013 till the date of payment, to pay sum of Rs.50,000/- towards legal expenses along with interest at 24% p.a. from the date of filing to till date of payment. 
2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainants alleges that the Opposite Parties have running fertility centers in the names of Base Fertility Medical Science Private Limited (BASE) and Srushti Global Medicare & Research Foundations. The Opposite Parties gave the advertisements through Suvarna, public-Kannada TV Channels, newspapers and Hoardings stating that they assure 100% result in their clinic to the childless couples to have their own children, further the Opposite Parties said that they are experts in IVF, IUI, ICSI, TESA, MESA, PESA facilities/Treatments and authenticated in fertility field and they will provide the American standard medical care to the childless couples to have their own children, the Complainants watch the same in the Year 2013.  When the Complainants made an enquiry with Opposite Parties the Opposite Parties very nicely started the discussion with the Complainants and Opposite Parties asked the Complainants about their problem, Opposite Parties after knowing about Complainants problem gave 100% hopes to Complainants, that the Complainants will get their own baby within short period through Opposite Parties successful treatment.   During enquiry/consultation, Opposite Party NO.1 clarify the Complainants doubt about the treatment, that he himself and Opposite Party No.3 are the Senior Doctors and pioneer in fertility field science and both running Base Fertility Medical Science Private Limited, and Srushti Global Medicare and Research Foundations along with some doctors, their fertility centre is the only Organization which is providing “Certified paternity test for IVF babies in India” and convince the Complainants.  Thereafter, the Opposite Party NO.1 demand the Complainant’s to pay the package amount of Rs.5,00,000/- towards treatments, and consultation charges Rs.3,200/- for each consultations, further states they utilize the 50% of package amount for social services through their Srushti Medicare & Research Foundation, and states his mother and wife will take care of this foundations.  The Complainants shocked about Package amount and requested the Opposite Parties, that they are unable to arrange the huge amount of Rs.5,00,000/- and asked to deduct the package amount, their capacity is maximum Rs.2,00.000/-, Opposite Parties refuse the Complainants request.  After the negotiation Opposite Parties finally agreed to receive the package amount of Rs.3,50,000/- and applies the terms and conditions to the Complainants that the package amount of Rs.3,50,000/-  must be paid by the Complainant in single payment and package excludes regular checkup charges, consultation charges and other tests/lab charges, prescriptions, other charges, etc.  Thereafter Complainants believed the Opposite Party No.1 to 3 and decided to take treatment from Opposite Parties clinic, than Opposite Parties started IVF procedure investigations and other tests to both Complainants on 18.09.2013 and charged total amount of Rs.20,645/- for the first time IVF investigation and suggested to Complainants to attend for regular check-ups.  After the first time IVF investigation the Opposite Parties conducted some tests to the Complainant No.2 on 23.09.2013 and charged Rs.6,800/- towards checkup.  On 13.10.2013, 26.10.2013, 22.11.2013 charged Rs.3,200/- towards consultation for each dates, the total amount towards consultation for the said dates is Rs.9,600/- on 22.11.2013, during the consultations/regular check-ups the Opposite Parties received the consultation charges from the Complainants on each consultation dates and the Opposite Parties have not issued the receipts to the Complainants for the payment made towards consultation charges, Opposite Parties staffs gave the tokens to the Complainants at registration counter on each dates and thereafter Opposite Parties staffs have collected the said tokens at the time of Complainants entering into Opposite Parties consultation room.    On 01.11.2013, the Opposite Parties conducted some tests to the Complainant No.2 and charged Rs.22,500/- and on 02.11.2013 Opposite Parties charged Rs.3,980/- to the Complainant No.2 towards further check-up.  On 05.11.2013, 06.11.2013, Opposite Parties charged Rs.3,200/- towards consultation for each dates.  The total amount towards consultation is Rs.6,400/- as on 06.11.2013.  On 12.12.2013 the Opposite Parties charged Rs.2,100/- to the Complainant No.2 towards check-up.  In the meantime the Opposite Parties conducted some tests to the Complainant No.1 on 28.09.2013 and charged Rs.9,200/- and on 26.10.2013 Opposite Parties charged fee of Rs.22,500/- and Rs.766/- towards check-ups and others.  In between the regular checkups and in continuation to the IVF procedure the Opposite Party No.1 to 3 and their clinic staffs conducted second time IVF investigations to both Complainants after some days and Opposite Parties charged (Rs.9,200 + Rs.6,900) total amount of Rs.16,100/- towards second time IVF investigation and suggested the Complainants to attend for regular checkups.  After the second IVF procedure investigation the Opposite Parties conducted the special investigations and Opposite Parties charged Rs.22,500/- to Complainants thereafter Opposite Parties conducted fourth time investigation as Special Investigation for PCOS cases and charged Rs.11,900/- and issued the prescriptions for special food and medicines to the Complainants.  After Special IVF procedure investigation report the Opposite Parties again assure 100% result to Complainants and demands the Complainants, if the Complainants wants to take further treatment they must enter into an agreement and have to pay the total package amount of rS.3,50,000/-as finalized after negotiation on 18.09.2013.  The Complainants desiring to have their own child and believed the Opposite Parties 100% assurance about result the Complainants have agreed to pay the package amount and borrow the loan from their friends/relatives with the rate of interest 2% per month and paid the said package amount sum of Rs.2,00,000/- to the Opposite Party No.2 and Rs.1,50,000/- to the Opposite Party No.1 total amount of Rs.3,50,000/- by way of cash on 13.12.2013.  After the package amounts paid by the Complainants the Opposite Parties and their clinic staffs continued the further treatments to the Complainants and charged the Complainant No.2 towards consultations.  On 30.12.2013, 31.12.2013, 17.01.2014, 20.01.2014, 08.03.2014, 25.03.2014, 07.06.2014, 11.07.2014, 22.07.2014, 27.09.2014, Opposite Parties charged Rs.3,200/- towards consultation for each dates.  The total amount towards consultations is Rs.32,000/- as on 27.09.2014 and separately Rs.500/- charged for scanning’s and different test on these dates, the total amount towards different tests on these dates is Rs.7,656/-.  During the treatment the Complainants have followed all the advises and prescriptions as given by the Opposite Parties, and spent more than Rs.50,000/- towards prescriptions.  After the treatment given by the Opposite Parties for more than one year to the Complainants there was no positive result came from the Opposite Parties treatment as they assured 100%.  Thereafter the Complainants asked Opposite Parties regarding to the result, Opposite Parties have evaded the answer stating that they know what they have to do.   In the meantime some Kannada TV channels telecast that the Opposite Parties are not Doctors they have adopted unfair trade practice in medical field without having academic qualifications and authentication, and adopted illegal methods of treatments in fertility field and thereby cheating the childless couples/publics by giving false advertisements and treatment.   After watching the TV News the Complainants were shocked and went to Opposite Parties clinic to enquire about the issue and asked Opposite Parties to refund the amount to them, but the Opposite Parties refuse to refund the amount to Complainants. Thereafter the Complainant No.1 approached the Opposite Parties so many times to refund the amount what they have paid & spent towards treatment, than Opposite Parties and their staff starts quarrel with Complainants and threatened the Complainants, further Opposite Parties said they will not refund.  Thereafter, the Complainant No.2 lodge the police Complainant against the Opposite Parties on 17.04.2015, many other aggrieved couples have lodge the police complaint and consumer complaints against the Opposite Parties No.1 to 4.    The Complainants have lost trust in the Opposite Parties.  Hence, the Complainants opted to file this Complainant for the deficiency of service by the Opposite Parties.   The Complainants have suffered great mental agony, financial loss and physically injured and harassed from unnecessary tests/treatments, scanning, regular injections, anesthesia’s and unnecessary prescriptions and unfair service given by the Opposite Parties and the Complainants lost their resistance power.  The unnecessary regular check-ups affected on the Complainant No.1 job, salary/income, it has caused great strain and mental agony to the Complainants and the Opposite Party No.1 to 4 has also spoiled huge money and time of the Complainants.  The Opposite Parties has indulged in unfair and illegal practice in medical field without having academic qualification and authentication, and adopted illegal methods of treatments in fertility field and thereby cheated the thousands of childless couples by giving false advertisements.  Hence this complaint.

3. Even though, the Complainant issued Legal Notice against Opposite Parties No.1 to 4 through RPAD, but the notice is not served on Opposite Parties No.1 to 4 and return with Shara as addressee left.  Thereafter, the Complainants have filed an application under Order-5 Rule 20(1A) Read with Section 151 of the Code of Civil Procedure for substituted service through paper publication.  This Forum allowed this application and ordered to issue notice to the Opposite Parties through the paper publication publishing in “Hosadigantha” Kannada Daily Newspaper.  Even though, notice was served to the Opposite Parties No.1 to 4 through paper publication. The Opposite Parties No.1 to 4 fails to put their appearance, hence placed ex-parte. 
4. Thereafter, the Complainant Sri.Pramod filed his affidavit by way of evidence.  After hearing the arguments posted for orders.  When the case is posted for orders, the Opposite Parties No.1 to 4 have filed an Application under Order-9 Rule-7 Read with Section 151 of the Code of Civil Procedure-1908. This application was allowed on 07.08.2017 and permitted the Opposite Parties No.1 to 4 to file their version.  But the Opposite Parties have failed to file their version.  On the other hand, on 25.01.2018 the Opposite Parties No.1 to 4 have filed an application Under Section-151 of the Code of Civil Procedure taking permission to file the version but this Forum was dismissed the application.  Heard arguments.

5.      The points that arise for consideration are:-

1. Whether the Complainants have proved the alleged deficiency in service by the Opposite Parties?
2. If so, to what relief the Complainants are entitled ?

6.     Our findings on the above points are:-

                POINT (1)         :-   Affirmative

POINT (2)         :-  As per the final Order

REASONS

7. POINT NO.1:- It is the case of the Complainants that the Opposite Parties have running fertility centers in the names of Base Fertility Medical Science Private Limited (BASE) and Srushti Global Medicare & Research Foundations. The Opposite Parties gave the advertisements through Suvarna, public-Kannada TV Channels, newspapers and Hoardings stating that they assure 100% result in their clinic to the childless couples to have their own children, further the Opposite Parties said that they are experts in IVF, IUI, ICSI, TESA, MESA, PESA facilities/Treatments and authenticated in fertility field and they will provide the American standard medical care to the childless couples to have their own children.  The Complainants who have no children, believed the advertisements given by the Opposite Parties, the Complainants have approached the Opposite Parties in the year 2013 for the treatment to have their own children. The Opposite Parties after knowing about Complainants problem gave 100% hopes to Complainants, that the Complainants will get their own baby within short period through Opposite Parties successful treatment.   The Opposite Party No.1 clarify the Complainants doubt about the treatment, that he himself and Opposite Party No.3 are the Senior Doctors and pioneer in fertility field science and both running Base Fertility Medical Science Private Limited, and Srushti Global Medicare and Research Foundations along with some doctors, their fertility centre is the only Organization which is providing “Certified paternity test for IVF babies in India” and the Opposite Party No.1 demand the Complainant’s to pay the package amount of Rs.5,00,000/- towards treatments, and consultation charges of Rs.3,200/- for each consultations, they utilize the 50% of package amount for social services through their Srushti Medicare & Research Foundation.  The Complainants asked to deduct the package amount, their capacity is maximum Rs.2,00.000/-, opposite Parties refuse the Complainants request.  After the negotiation Opposite Parties finally agreed to receive the package amount of Rs.3,50,000/-.  In order to substantiate this, the Complainant Sri.Pramod has filed his affidavit, in his sworn testimony, he has reiterated the same and produced the Donation Receipt dt.13.12.2013.   As looking into this document, it is clear that the Shrushti Global Medicare & Research Foundation i.e., in the name of Opposite Party No.2 has received a sum of Rs.2,00,000/- by cash from 2^nd Complainant Smt.Netravathi Pramod and under receipt No.5390, the 1^st Opposite Party had received for a sum of Rs.1,00,000/- donation by cash in the name of Base Fertility.  But this evidence of the Complainants have not been challenged or disputed by the Opposite Parties.  To disbelieve the evidence of the Complainants, it is proper to accept the contention of the Complainants that the Complainants by paying a sum of Rs.3,50,000/- as package amount to the Opposite Parties agreed to take treatment with Opposite Parties with a fond hope that they will get their own baby within short period as assured by the Opposite Parties. 

8. It is further case of the Complainants that the Opposite Parties started IVF procedure investigations and other tests to both Complainants on 18.09.2013 and the Complainants to attend for regular check-ups, investigations on various dates for each dates the Opposite Parties have charged consultation fee of Rs.3,200/- and also other investigation charges and prescriptions.  Even to substantiate this fact also the 1^st Complainant in his sworn testimony, he has reiterated the same and produced the bills issued by the Opposite Parties and also IVF procedure investigations.  This clearly goes to show that the Complainants have taken treatment with Opposite Parties and also by paying regular consultation charges and other investigation and other charges.  The Complainants have taken treatment with Opposite Parties till 27.09.2014. Inspite of that from 18.09.2013 i.e., more than year, there is no any chance of the Complainants getting baby as assured by the Opposite Parties. Some Kannada TV channels telecasting that the Opposite Parties are not Doctors and they have adopted unfair trade practice in medical field without having academic qualifications and authentication, and adopted illegal methods of treatments in fertility field. After watching the TV News the Complainants were demanded for Opposite Parties to refund the amount.  But the Opposite Parties have refused to refund the amount.  If really the Opposite Parties have an experts and penal in the field of IVF, IUI, ICSI, TESA, MESA, PESA facilities/Treatments and they will providing the American Standard Medical Care to the childless couples.  The Complainants after taken more than year treatment the result would be Negative, but inspite of that there is no positive result i.e., the Complainants getting baby.  Thereby, it is crystal clear that the Opposite Parties have not experts or competent and penal in the field of IVF, IUI, ICSI, TESA, MESA, PESA facilities/Treatments and they will providing the American Standard Medical Care to the childless couples.    For that reason, there are so many complaints against the Opposite Parties and even in the Media also telecasting that the Opposite Parties are fake Doctors, they have not qualified Doctors.  For that reason, the Complainants have demanded for refund of the amount.  Inspite of that, the Opposite Parties have failed to refund the amount. For that reason, the Complainants lodged a complaint with Kamakshi Palya Police Station on 17.04.2015 against the Opposite Parties. On that basis, Kamakshi Palya Police have registered a case against the Opposite Parties in Crime No.0201/2015 for the offence punishable under Section -465, 468, 419, 417, 420, 504, 506 R/w 34 of IPC and submitted the FIR to the 5^th Additional CMM Court for the offence punishable Under Section -465, 468, 419, 417, 420, 504, 506 R/w 34 of IPC, thereby, it is crystal clear that the Opposite Parties are not specialized Doctors in the field of IVF, but on the other hand they were fake Doctors and only to wrongful gain they are adopting unfair trade practice by collecting huge amount from the childless couples and cheating the publics by giving false advertisements and treatment.   Thereby, the said fact was telecasted in the media.  Further this is clear from the evidence of the Complainants that the Opposite Parties are adopting unfair trade practice and they have fails to give proper treatment for the amount received from the Complainants. 

9.  Totally the Opposite Parties have collected a sum of Rs.4,96,647/-, as per the evidence placed by the Complainants, thereby the Opposite Parties are liable to refund the said amount since they give false assurance and also Complainants are paid the said amount to the Opposite Parties by borrowing the loan from their friends and relatives on interest, thereby they are entitled for interest at the rate of 12% p.a.  

10. The Complainants because of the unnecessary treatment and irregular treatment suffered monetarily as well as mental agony, thereby they are entitled for compensation for causing mental agony to the Complainants by the Opposite Parties.   Hence, this point is held in Affirmative. 

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

ORDER

The complaint is allowed partly holding that there is deficiency of service on the part of the Opposite Party No.1 to 4.

The Opposite Party No.1 to 4 are directed to refund a sum of Rs.4,96,647/- along with interest at 12% p.a., from 01.11.2015, till the date of payment.

The Opposite Party No.1 to 4 are further directed to pay a sum of Rs.50,000/- to the Complainants as compensation for causing mental agony. 

The Opposite Party No.1 to 4 are further directed to pay Rs.5,000/- as cost of this litigation to the Complainants.

The Opposite Party No.1 to 4 are directed to pay aforesaid amount within 45 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, 11^th day of April 2018).

MEMBER                                            PRESIDENT

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

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

 List of documents filed by the Complainant:

1. Copy of the bill/Receipt dt.27.03.2013 for Rs.1,093/-
2. Copy of the Bill dt.07.06.2016 for Rs.1,265/-.
3. Copy of the Bill dt.16.06.2014 for Rs.1,303/-.
4. Copy of the Bill dt.31.06.2014 for Rs.10,124/-.
5. Copies of the IVF Procedure investigations for Male and Female and Receipts for amount of Rs.5,100/- and for Rs.8550/-.
6. Copy of the Lab Report dt.18.09.2013.
7. Copies of the Consultations and scanning Reports dt.18.09.2013, 30.12.2013, 05.02.2014.
8. Copy of the Drug Usage Form for 20 days continuously.
9. Copies of the Receipts dt.18.09.2013 for amount of Rs.6900/- and Rs.95/- and dt.23.09.2013 for Rs.6800/-.
10. Copy of the Lab Report dt.23.09.2013.
11. Copies of the Consultation & scanning Report dt.13.10.2013, 02.11.2013, 22.11.2013, 12.12.2013, 31.12.2013, 17.01.2014.
12. Copies of the report dt.26.10.2013.
13. Copy of the Receipt dt.01.11.2013 for Rs.22.500/-.
14. Copies of the consent for anaesthesia dt.01.11.2013.
15. Copy of the Receipt dt.02.11.2013 for Rs.3980/-.
16. Copy of the consent from the Complainants for hysters copy tests.
17. Copy of the receipt dt.12.12.2013 for Rs.2100/-.
18. Copy of the Lab Report and Scanning dt.12.12.2013.
19. Copies of the Scanning reports and copies of the scanning.

20. Copy of the Report dt.12.12.2013, 28.09.2013 Rs.9,200/-.
21. Copy of the Lab Report dt.28.09.2013.
22. Copies of the Scrotal Scanning Reports and Copies of the scanning dt.28.09.2013.
23. Copies of the Consultations and Receipts for the payment of Rs.22,500/ and Rs.766/- dt.26.10.2013.
24. Copies of the second time IVF Procedure investigations for Male and Female and Receipts for amount of Rs.9200/- and for Rs.6900/-.
25. Copy of the Special Investigations and Receipt for amount for Rs.22,500/-.
26. Copy of the Special Investigations for PCOS Cases, and Receipt for amount of rs.3,200/- 5,100/-, and 3,600/- total Rs.11,900/-.
27. Copies of the Prescriptions for Special food and Medicines.
28. Copy of the Donation Receipt dt.13.12.2013 for the amount of rs.2,00,000/- paid in favour Srusti Global.
29. Copy of the Donation Receipt dt.13.12.2013 for the amount of Rs.1,50,000/- paid infavour of Base.
30. Copies of the patient records and Agreement for the Package and for the Payments dt.13.12.2013.
31. Copy of the Receipt dt.13.12.2013, 30.12.2013 for Rs.408/-and Rs.1800/-.
32. Copies of the scanning reports and copies of the scanning dt.30.12.2013.
33. Copy of the Lab report dt.30.12.2013.
34. Copy of the Receipt dt.31.12.2013 for the amount of Rs.500/- and Rs.148/-.
35. Copies of the Consultations and scanning Reports dt.31.12.2013, 20.01.2014, 08.03.2014, 25.03.2014.
36. Copies of the receipts dt.13.01.2014 for the amount of Rs.828/- and 3,472/-.
37. Copies of the Reports dt.20.01.2014 and 05.02.2014, copy of Scanning and scanning report dt.20.01.2014.
38. Copy of the Reports dt.07.06.2014.
39. Copies of the scanning reports and copies of the scanning dt.11.07.2014, 22.07.2014
40. Copies of the Lab Report dt.11.07.2014.
41. Copy of the Receipt dt.27.09.2014 for the amount of Rs.500/-.

42. Copy of the police complaint against the Opposite Parties dt.17.04.2015.
43. Copy of the FIR against the Opposite Parties dt.17.04.2015.

Witness examined on behalf of the Opposite Parties:

                             -NIL-

List of documents filed by the Opposite Party:

                             -NIL-

MEMBER                                                                 PRESIDENT