BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BHIWANI.
Complaint No.:43 of 2013.
Date of Institution: 11.03.2013.
Date of Decision:.17.05.2016
Smt. Siya alias Sunita, wife of Sh. Skill Gupta son of Sh. Sunil Gupta, resident of 378/6, Gandhi Nagar, Jind.
….Complainant.
Versus
- Chugh Multispeciality Hospital, Shivam Fertility & Test Tube Baby Centre, Shivam Complex, Circular Road, Bhiwani, through its proprietor Dr. Renu Chugh.
- Dr. Renu Chugh, C/o Chugh Multispeciality Hospital, Shivam Fertility & Test Tube Baby Centre, Shivam Complex, Circular Road, Bhiwani.
- Dr. Chhavi Chugh, C/o Chugh Multispeciality Hospital, Shivam Fertility & Test Tube Baby Centre, Shivam Complex, Circular Road, Bhiwani.
- Dr. Jaideep Malhotra, Malhotra Bhawan, 84, Mahatma Gandhi Road, Agra-282010.
- National Insurance Company Ltd., Branch Office at Circular Road, Bhiwani, through its Branch Manager.
- United India Insurance Company Ltd., Branch Office at Divisional Office No. 4, Vulcan Insurance Building, 1st Floor, 77, Veer Nariman Road, Churchgate, Mumbai-400 020, through its authorized representative.
…...Opposite Parties.
COMPLAINT U/S 12 & 13 OF CONSUMER PROECTION ACT.
BEFORE: - Shri Rajesh Jindal, President
Smt. Ansuya Bishnoi, Member
Present:- Sh. N.K. Jangra, Advocate for complainant.
Shri A. Sardana, Advocate for Ops no. 1 to 3.
Sh. Anurag Gupta, Advocate from Agra from OP no. 4.
Sh. R.K. Sharma, Advocate for OP no. 5.
OP no. 6 already exparte.
ORDER:-
Rajesh Jindal, President:
Brief facts of the present case are that the complainant alongwith her husband visited the hospital of OP no. 1 and consulted Ops no. 2 & 3, on which they advised the complainant that she would surely conceive after taking treatment of I.V.F. technique from OP no. 4. It is alleged that there have been many advertisements given by OP no. 1/hospital to the effect that infertile ladies could get conceived by getting treatment through this hospital from Dr. Jaideep Malhotra, who is a visiting doctor in the OP no. 1/hospital. It is alleged that the complainant accompanied by her husband, visited OP no. 1 and contacted the doctors Ops no. 2 to 4, where OP no. 2 Dr. Renu Chugh advised to come in OP no. 1/hospital on 09.03.2011 when Dr. Jaideep Malhotra aforesaid would be visiting. That on 09.03.2011, on prior appointment, the complainant alongwith her husband against visited OP no. 1 where Dr. Renu Chugh as well as visiting Dr. Jaideep Malhotra assured the complainant and her husband that all process of treatment by I.V.F. technique would be accomplished by Dr. Jaideep Malhotra and they advised the complainant to visit OP no. 1 on 01.05.2012. On 01.05.2012, Rs. 1,50,000/- were paid by husband of complainant to Dr. Renu Chugh as initial payment for getting treatment. It is alleged that thereafter, egg was derived by Dr. Renu Chugh on that date i.e. 01.05.2012 from the ovary of the complainant, by mis-representing the complainant and her husband that OP no. 4 was in the operation theatre and she would conduct all the process in that regard. It is alleged that Dr. Jaideep Malhotra had not even come to Bhiwani when complainant objected that Dr. Jaideep Malhotra was not present in the hospital from whom she was advised to get treatment, then Dr. Renu Chugh assured complainant that Dr. Jaideep would be visiting their hospital on 03.05.2012. That on 03.05.2012, the complainant alongwith her husband again visited from Jind in hospital and enquired about result of I.V.F. process. It is alleged that Ops no. 2 & 3 both told the complainant and her husband that Dr. Jaideep Malhotra was not able visit their hospital on 3.5.2012 for some reason and no result of I.V.F. process was conveyed to the complainant. It is alleged that Dr. Renu Chugh and Dr. Chhavi Chugh assured the complainant and her husband that Dr. Jaideep Malhotra would pay next visit in their hospital on 25.12.2012 and then the I.V.F. process would be carried out. That on 25.12.2012 again Dr. Jaideep Malhotra could not come present in the hospital of OP no. 1. It is alleged that the I.V.F. Process was carried out and accomplished by Dr. Renu Chugh and Dr. Chhavi Chugh themselves without the consent of the complainant and her husband, because the complainant and her husband had signed the consent papers for I.V.F. process to be carried out and accomplished by Dr. Jaideep Malhotra and paid an amount of Rs. 1,50,000/- and Dr. Renu Chugh did not disclose that the aforesaid I.V.F. process was not carried out by Dr. Jaideep Malhotra, who could not come on 25.12.2012 and said process was carried by she herself alongwith OP no. 3. It is alleged that there was not the proper arrangement of ultrasound machine and said machine was removed from here to there and proper bed facility was not provided to the complainant and even the complainant had to share bed with another patient. It is alleged that her husband paid Rs. 70,000/- as second payment and also spent a sum of Rs. 50,000/- on medicines. It is alleged that the entire I.V.F. process was carried out and completed by Dr. Renu Chugh and Dr. Chhavi Chugh without the consent of complainant and her husband, whereas complainant and her husband had given consent and paid necessary charges for the said I.V.F. process to be conducted by Dr. Jaideep Malhotra and I.V.F. process remained unfruitful. The complainant further alleged that due to the act and conduct of the respondents, she had to suffer harassment, mental agony and the chances of conceivement of complainant in future have also got dim. Hence, it amounts to deficiency in service on the part of respondents and as such she had to file the present complaint for seeking compensation.
2. On appearance, OPs no. 1 to 3 filed written statement alleging therein that the deficiency in service on the part of the doctor can be fixed unless any report from medical expert on that speciality is submitted highlighting the fault on the part of treating doctor as holed by the Hon’ble Supreme Court as well as Hon’ble National Commission in the present case no opinion any doctor/medical expert/board has been submitted and as such the present complaint is liable to be dismissed only on the short ground. It is submitted that Sh. Virender Kumar Chugh is a proprietor of Chugh Hospital and Dr. Renu Chugh has been wrongly shown as a proprietor of said hospital. It is submitted that the complainant was married with Shri Skill Gupta about 4 years ago and could not conceive. It is submitted that after careful examination, investigations and USG reports, the complainant and her husband were informed that she has to undergo IVF technique to achieve pregnancy and that the complainant was explained about the entire method as also the total expenses for the same. It is submitted that they signed the necessary documents which stood printed in the Hindi. It is submitted that Dr. Malhotra who happened to be in the hospital on that day and she also saw all reports of complainant and was also explained that chances of pregnancy is around 30 to 45 per cent in the best centres in the country and the world and there is no question of any guarantee. It is submitted that Dr. Manish Kumar I.V.F. specialist from Pune alongwith his team did the procedure. It is submitted that it was only bad luck of the patient that she could not conceive and not the fault of treating doctor. It is submitted that the entire procedure was carried out by Dr. Manish Kumar Sr. I.V.F. Specialist from Pune and the complainant and her attendants were fully aware about the same and there was no occasion of the Ops no. 2 and 3 to say that Dr. Malhotra is inside the operation theatre when she had not come from Agra. It is submitted that the procedure was carried out by Dr. Manish Kumar from Pune and Dr. Renu Chugh jointly alongwith their team as highlighted above Dr. Chhavi Chugh is not part of the team and she had not carried out the procedure on that day. Hence, in view of the facts and circumstances mentioned above, there is no deficiency in service on the part of opposite party no. 1 to 3 and complaint of the complainant is liable to be dismissed with costs.
3. OP No. 4 on appearance also filed separate written statement alleging therein that the answering respondent no. 4, is a visiting consultant of the hospital. It is submitted that this respondent guides the Ops no. 1 to 3 as to how the procedure is to be done and helps the Ops no. 1 to 3 in case if they find any problem in the procedure, which is done exclusive by them. It is submitted that the answering respondent only supervises and guides the staff and doctors of OP no. 1, as to how the procedure of IVF is to be done. It is submitted that the IVF procedure was not done by answering respondent no. 4, but was carried out by Ops no. 2 & 3 i.e. by Dr. Renu Chugh and Dr. Chhavi Chugh. It is submitted that it is the complainants own case that the Ops no. 2 & 3 did not inform them that OP no. 4 has not done the procedure and it has been admitted by the complainant that on the dates she took the procedure, OP no. 4 was not there. Hence, in view of the facts and circumstances mentioned above, there is no deficiency in service on the part of answering respondent and complaint of the complainant is liable to be dismissed with costs.
4. OP No. 5 on appearance also filed separate written statement alleging therein that Ops no. 1 and 2 of the answering respondent have failed to given in writing any notice to the answering respondent company as soon as reasonable practicable of any claims made against the answering respondent company insured for specific event or circumstances that may give rise to a claim being made against the insured and which forms the subject of indemnity under the policy. It is submitted that no such opinion of any doctor/medical expert has been submitted and hence no medical negligence on the part of respondent doctors can be attributed. Hence, in view of the facts and circumstances mentioned above, there is no deficiency in service on the part of OP no. 5 and complaint of the complainant is liable to be dismissed with costs.
5. OP no. 6 has failed to come present. Hence he was proceeded against exparte vide order dated 10.03.2014.
6. In order to make out his case, the counsel for complainant has tendered into evidence documents Annexure C-1 to Annexure C-38 alongwith supporting affidavit.
7. In reply thereto, the counsel for opposite party no. 1 to 3 has tendered into evidence documents Annexure R-1 to Annexure R-17 alongwith supporting affidavit, counsel for OP no. 4 has tendered into evidence affidavit of Jaideep N Malhotra and counsel for OP no. 5 has tendered into evidence document Annexure R-18 alongwith supporting affidavit.
8. We have gone through the record of the case carefully and have heard the learned counsels for the parties.
9. Learned counsel for the complainant reiterated the contents of the complaint. He submitted that the complainant and her husband were desirous to have child and they were attracted to the advertisements given by the Ops no. 1 to 3 to the effect that infertile ladies could get conceived by getting treatment of I.V.F. technique through their hospital from Dr. Jaideep Malhotra OP no. 4, who is I.V.F. specialist from Agra. On 09.03.2012, the complainant alongwith her husband visited the hospital. The Ops no. 2 & 3, who alongwith OP no. 4 conducted medical check up of the complainant. The Ops no. 2 & 3 assured the complainant that the procedure of I.V.F. technique will be performed by OP no. 4 and the result is 100 per cent. As per the advise of Ops no. 2 & 3, the complainant and her husband visited Ops no. 1 to 3 on 01.05.2012. It is further contended that the Ops no. 2 & 3 assured the complainant that the process of I.V.F. technique will be performed by OP no. 4, thereafter the complainant paid Rs. 1,50,000/- to Ops no. 2 & 3. The Ops no. 2 & 3 got signed some papers from the complainant. The Ops no. 2 & 3 misrepresented that OP no. 4 was in operation theater and all the process would be carried out by the OP no. 4. But OP no. 4 was not present there nor he visited on 01.05.2012 or 03.05.2012 as assured by Ops no. 2 & 3 to the complainant. No result was conveyed by the Ops no. 2 & 3 to the complainant and they assured that now OP no. 4 will visit the hospital on 25.12.2012. On 25.12.2012, the entire process of I.V.F. technique was carried out by Ops no. 2 & 3 themselves in their hospital in the absence of OP no. 4, without the consent of the complainant, because the OP no. 4 had also not come on 25.12.2012. He further submitted that no bed facility and other facilities were provided by Ops no. 1 to 3 to the complainant. The Ops no. 1 to 3 charged Rs. 70,000/- as second installment of fee and Rs. 50,000/- for medicines from the complainant. The said I.V.F. process performed by the Ops no. 2 & 3 remained unsuccessful. The counsel for the complainant argued that Ops no. 2 & 3 have committed the professional misconduct and are guilty of deficiency in service. The Ops no. 2 & 3 charged a total sum of Rs. 2,70,000/- from the complainant for the I.V.F. process on the assurance that the same will be carried out by OP no. 4 Dr. Jaideep Malhotra from Agra who is an I.V.F. specialist and the complainant had approached the Ops no. 2 & 3 for getting the service of OP no. 4.
10. Learned counsel for the Ops no. 1 to 3 reiterated the contents of the reply. He submitted that no report of medical expert has been obtained hence the Ops no. 1 to 3 cannot be held guilty of deficiency in service. He submitted that OP no. 3 was not associated with I.V.F. process carried out on the complainant. He submitted that OP no. 2 explained the entire procedure of I.V.F. technique to achieve the pregnancy. The complainant and her husband agreed to the procedure and signed the necessary documents. He submitted that the treatment of I.V.F. technique was started on 01.05.2012. The OP no. 2 and Dr. Manish Kumar I.V.F. specialist from Pune with his team performed the procedure, but the complainant did not conceive. He further submitted that the success rate is around 35% to 45% as per international standard. The I.V.F. technique was carried out on 11 patients out of which 5 got conceived which is almost 45% equivalent to international standard. He further submitted that Ops no. 1 to 3 never assured that OP no. 4 will come in May 2012 and December 2012. He further submitted that the I.V.F. technique was carried out by Dr. Manish Kumar from Pune who is much more competent than OP no. 4. In support of his contention he referred the following judgments:-
I Shashi Bala Versus Chahal Hospital (Multi Specialty Hospital) 2015 (3) CLT 159.
II Kamlesh Kumar Gupta Versus Dr. Gyan Chand Singhal I (2011) CPJ 552.
II SGT Chaman Lal & Ors. Versus Union of India MOD & Ors. 2014 (1) CLT 139.
11. Learned counsel for the OP no. 4 reiterated the contents of his reply. He submitted that no allegation, whatsoever, has been made against OP no. 4, by the complainant in his complaint. He further submitted that no fee has been charged by OP no. 4 from the complainant. From the pleadings of the complainant and as well as of the Ops no. 1 to 3, it is clear that the OP no. 4 has not carried out the procedure of I.V.F. technique, but was carried out Ops no. 2 & 3 as per the contention of the complainant. No deficiency in service or negligence has been alleged by the complainant against OP no. 4. The complainant has no cause of action against OP no. 4. Therefore, the name of the OP no. 4 kindly be deleted from the arrays of the Ops.
12. The counsel for OP no. 5 of the insurance company reiterated the contents of the reply and supported the pleadings of Ops no. 1 to 3.
13. In the context of the pleadings and arguments of the parties, we have examined the relevant material on record. The case law relied upon by the counsel for Ops no. 1 to 3 relate to the medical negligence. Admittedly, this is not a case of medical negligence, therefore the case law referred above do not apply to the instant case. It is known fact that vast advertisements appear in the media or elsewhere making tall claims for the childless couples, to have child by I.V.F. technique or other. The success rate of 35% and 45% as contended by Ops no. 1 to 3 is not mentioned in advertisements nor displayed in I.V.F. centers/hospitals, rather the patients are made to believe 100 per cent success of this technique.
14. The counsel for the complainant has contended that Ops no. 2 & 3 had assured the 100 per cent result of I.V.F. technique and which shall be performed by OP no. 4. The complainant had approached to Ops no. 1 to 3 at Bhiwani from Jind City, on their advertisement that the treatment for I.V.F. technique will be performed by OP no. 4 Dr. Jaideep Malhotra from Agra, who is I.V.F. technique specialist. Admittedly the treatment of I.V.F. technique was not carried out by OP no. 4.
15. The counsel for Ops no. 1 to 3 has contended that OP no. 2 alongwith Dr. Manish Kumar I.V.F. specialist from Pune with his team carried out the I.V.F. procedure. The complainant has specifically pleaded that the complainant had approached to Ops no. 1 to 3 for I.V.F. treatment to have a child, only on this assurance that the said I.V.F. procedure will be carried out by OP no. 4 an I.V.F. specialist from Agra.
16. It is not the case of the Ops no. 1 to 3 that they informed the complainant that I.V.F. technique shall be performed by Dr. Manish Kumar of Pune and not by OP no. 4. Had the Ops no. 1 to 3 told the complainant about the change of I.V.F. specialist the complainant would have not got the treatment of I.V.F. technique, the Ops no. 2 & 3 are not specialist of I.V.F. technique. Considering the pleadings of the parties, we found that no case is made out against OP no. 4, accordingly the complaint of the complainant stands dismissed against OP no. 4. Taking into account every aspect of the case, we hold that Ops no. 1 to 3 are liable for professional misconduct and are guilty for deficiency in service by misrepresenting that the process of I.V.F. technique shall be carried out by OP no. 4 who is an I.V.F. specialist from Agra and the success rate is 100 per cent and charged Rs. 2,70,000/- from the complainant. We partly allow the complaint of the complainant and award Rs. 1,50,000/- as compensation to the complainant which shall be payable by Ops no. 1 to 3 and 5, jointly and severally. The complainant is also awarded Rs. 2500/- as litigation cost against Ops no. 1 to 3 and 5. This order be complied with by the Ops no. 1 to 3 and 5 within 60 days from the date of passing of this order. If the Ops no. 1 to 3 & 5 failed to comply with this order within the stipulated time then they shall be liable to pay interest at the rate of 8 per cent per annum from the date of passing of this order till the date of payment. Certified copies of the order be sent to the parties free of costs. File be consigned to the record room, after due compliance.
Announced in open Forum.
Dated: 17.05.2016. (Rajesh Jindal)
President,
District Consumer Disputes
Redressal Forum, Bhiwani.
(Ansuya Bishnoi)
Member.
