Date of filing : 26/09/2018

Date of Judgement : 22/12/2022

Mrs. Sashi Kala Basu, Hon’ble President.

          This complaint is filed by Smt Kabita Majumdar  under section 12 of Consumer Protection Act 1986 against Opposite Parties  ( referred as OPs herein after) namely:-  1) Centre Head (Manager)  The Apollo clinic  and 2) Dr. N.R. Chowdhury (MD Path and Consultant Pathologist)  alleging deficiency in service on the part of the OPs.

       Case of the complainants in short is that she was under treatment of Dr. Mridula Chaudhury (Basu) relating to her pregnancy. The said Dr. Mridula Chaudhury had prescribed Semen Analysis test of the Complainant’s husband namely Partha Sarathi Majumdar. Accordingly the Complainant and her husband went to the O.P. no. 1 for Semen Analysis test and a report duly signed by the O.P. no. 2 dated 26.06.2017 was received by the Complainant. Surprisingly in the report both ‘No viable Spermatozoa seen’ and parallally was also written ’75 millions’. When the Complainant went to  Dr. Mridula Chaudhury , on seeing the report she made a box with her Pen on the said report saying that report was wrong and asked the Complainant to get a correct report of her husband from the O.P. no. 1. Thereafter the Complainant went to the O.P. no. 1 for an explanation for the wrong report but the O.P.s told that the report was OK and they would neither change the report nor would refund the money to the Complainant. So the Present complaint is filed for directing the O.P.s to pay a sum of Rs. 500000/- as compensation for such medical negligence and to pay cost of the litigation.  

                OP no.1 as well as OP no.2  have contested the case by filing separate written version contending inter-alia that the complainant is not a consumer. It is specific case of OPs that the husband of the complainant approached the OP no.1 for semen Analysis on 26.06.2017 and accordingly on the same day semen specimen was collected and on Analysis of semen  total spermatozoa  count was 75 million. It is further stated that husband of Complainant had also approached West Bengal Clinical  Establishment Regulatory Commission where the Hon’ble Commission  vide order dt 26.06.2018 rejected the complaint filed by the husband of the complaint. It is contended further by OPs that there has not been any fault or negligence on the part of the OP’s and thus they have prayed for dismissal of the case.

                 During the course of the trial both parties have filed their respective examination-in chief on affidavit followed by filing of questionnaire and reply thereto by both side and both parties have filed their respective written notes of argument.

So, following points require to be determined:-

1) Whether the complainant is maintainable under law?

2) Whether there has been any deficiency  in service on  the part of the OPs?

3) Whether the complainant is entitled to the relief as prayed for?

Decision with Reason

Point No.1

                It has been submitted in the BNA filed by the OPs that no service of the OPs was hired by the complainant and thus the complainant is not a consumer. It is also argued that no document is filed that the husband of the complainant authorised her to file the case.

                On perusal of the document filed by the complainant, it is evident that the husband of the complainant had paid Rs 325/- for Semen Analysis. Cash bill dated 26.06.2017 stands in the name of the complainant’s husband namely Parthasarthi Majumdar and accordingly his semen Analysis was done on the same day. So apparently services of the OP’s was hired and availed of by the husband of the complainant. Admittedly no document has been filed by the complainant that she has been authorised by her husband to file this complaint. So the question now arise whether the complainant is a “Consumer” under the provision of CP act. It has to be borne in the mind that the definition of “Consumer” provided under the Consumer Protection Act also includes any beneficiary of such service other than person who hires or avails of the services for consideration  paid. In this case, complainant was under the treatment of Dr Mridula Chaudhury relating to pregnancy. There cannot be any denial and dispute that complainant and her husband to become parents were consulting to the said doctor who prescribed and asked for the semen analysis test report of complainant’s husband. Further it cannot be disputed that the nature of treatment ((pregnancy) requires participation of both i.e. the complainant and her husband. So, it is true that it is complainant’s husband who paid the bill and underwent semen analysis test but complainant is also a beneficiary of such report for her further treatment. Consequent to report, the treatment of the complainant and her husband would have been proceeded. So complainant being beneficiary falls well within the definition of the consumer and thus contention of the OPs that complainant is not a “consumer” cannot be accepted.

Point No. 2 & 3

                Both the points are taken up for a comprehensive discussion. In this Case claim of the complainant that after “semen analysis” of her husband, OPs issued a report stating “no viable spermatozoa seen” and parallaly it was also written 75 million, is not denied by the OPs. It was an incorrect report has been admitted by the OPs. in the written version filed by them and also in reply to questionnaire put by the complainant. However according to them it was a typographical error.

On perusal of the semen analysis report dated 26.06.2017, it appears that under Head Microscopic examination , in one side “no viable spermatozoa seen” is written and parallel to it in the same line “75 millions” is written. It is also noted that under head morphology spermatozoa, it is written normal: 75% and abnormal 25% “No viable spermatozoa seen” is pen through which according to the complainant has been done by her treating doctor Mridula Chaudhury. On a careful scrutiny of the said report, it suggest that on semen analysis test 75 million spermatozoa  was found normal and it further suggest that writing ”No viable spermatozoa seen” in one side was a fault on the part of the OPs. The nature and manner of performance which was required to be maintained and undertaken to be performed was not performed by the OPs. Question now arises whether such fault amounts to “deficiency” as defined under the provision of C.P. Act. under section 2(1)(g)of C.P. act 1986, “Deficiency” means “any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under law for time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.”

                It is already pointed out above that OP’s have admitted that incorrect report was issued. in reply to question no 9 and 13 put by the complainant. OP no 2 has stated that “report was corrected and sent to patient’s residence but patient denied to accept the corrected report”. So the onus to prove that a correct report was sent to the Complainant’s husband is upon the Ops. Excepting a bare statement, no document is filed by the OPs that the report was corrected and it was sent to the complainant’s husband. If that be the situation than in view of the definition of “deficiency” as mentioned above, OP’s have been deficient in rendering service to complainant as they failed to perform in the manner they were to perform and thus complainant is entitled to the compensation. However since, it is  not the case of the complainant that due to such incorrect report, either she or her husband were wrongly treated or their treating doctor Mridula Chaudhury was misled, we find an amount of Rs 20000/- as compensation and Rs 10000/- as litigation cost will be justified.

Hence,

                Ordered

CC/376/2018 is allowed on contest. Opposite parties are directed to pay Rs 20000/-as compensation and litigation cost of Rs 10000/- within two months from this date.