DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi- 110016

Case No.117/2011

Balbir Jaiswal

S/o Sh. Mohar Singh,

R/o Vill. & Post Office Pinangwan

Tehsil – Punahana,

Distt. – Mewar, Haryana

                                                                                                                        ….Complainant

Versus

Dr. Sunil Dargar,

Consultant Pathologist

H-Block, 41/S, Saket,

New Delhi - 110017

Dr. S. K. Pal

MBBS, MS, MCH (Urology)

Consultant Urology Lions Kidney Hospital

& Urology Research Institute

Opposite B-Block, New Friends Colony,

New Delhi

Lions Kidney Hospital

& Urology Research Institute

Opposite B-Block

New Friends Colony, New Delhi

        ….Opposite Parties    

       Date of Institution    :         28.03.2011

       Date of Order            :         08.02.2022

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

Sh. U.K. Tyagi, Member

ORDER

President: Ms. Monika A Srivastava

The complainant has filed the present complaint against Dr. Sunil Dargar OP No. 1, Dr.S K Pal OP No.2 and Lions Kidney Hospital OP No.3 claiming a refund of sum of Rs. 95,000/- on account of treatment charged by the OPs; Rs.50,000/- for mental harassment, torture, agony, pain, sufferings, humiliation; and Rs.20,000/- as litigation expenses.

The complainant states that he had suffered some medical disorder due to a road accident and approached the OP No.3 for the purpose of his treatment. After being examined by OP No.2 and conducting various investigation at the premises of OP No.3, OP No.2 had advised the complainant to get special treatment known as artificial insemination husband(AIH) from OP No.1 who told that he was known and reliable person to do such type of treatment/medical investigation. As per the advice of OP No. 2, the complainant along with his wife visited the clinic of OP No.1. It is stated by the complainant that he was assured by OP No.2 that the clinic of the OP No. 1 is a registered clinic which provided treatment for the problem faced by the complainant.

The complainant further states that on 09.07.2010, the complainant visited OP No.1 for the purpose of treatment along with all  the investigation reports annexed as Annexure A. After going through the investigations, OP No. 1 informs the complaint that he would be cured and for that purpose he had to pay Rs.45,000/- as charges for the treatment. It is the case of the complainant that he paid Rs. 45,000/- to OP No.1. OP No.1 again conducted some medical test on him and his wife and after conducting this entire investigation called the complainant on 13.07.2010 for AIH treatment. It is the allegation of the complainant that OP No. 1 after coming to know about the medical and family background of the complainant that the complainant is having three daughters prevailed upon the complainant to pay a sum of Rs. 50,000/- and assured him and his wife that they will get a male child. It is alleged by the complainant that this is against the rules and regulations laid down by the Indian Medical Association and the Government of India though he says that under the influence and misrepresentation of OP No.1, he further paid a sum of Rs. 50,000/- to the OP No.1. The complainant states that even after taking medicine and proper rest as per the advice of OP No.1 and 2 the treatment totally failed and the wife of the complainant could not conceive as a short…. when this fact was brought to their knowledge of OP-1 and OP-2 they again started demanding a sum of Rs.95,000/- from the complainant. It is the grievance of the complainant that he was charged for a treatment which is totally failed and therefore OP No.1 and 2 have committed deficiency in service on their part and have made themselves liable to pay or sum of Rs.95,000/- along with interest to the complainant as also Rs.50,000/- on mental agony, harassment and humiliation. It is the case of the complainant that OP No.3 has made himself liable to be prosecuted for unfair trade practice as OP No.2 is referring the patient to get some commission to unauthorised clinics who are cheating in the public at large.

In their reply, the OPs have stated that the OP No.1 is a consultant pathologist and runs diagnostic center namely Sun Diagnostic Centre at Saket, New Delhi which is an authorized clinic. OP No.2 had referred the complainant to consult OP No.1 for semen analysis on centrifuged specimen. As per the information provided by the complainant, he had suffered urogenital injuries during a road accident about 12 years back and due to that injury in the urinary bladder neck, he was unable to ejaculate. OP No.2 had suggested to the complainant that it would be feasible to resort to AIH which would only be possible if sufficient number of sperms could be gathered from the husband. At that time the complainant and his wife informed the OP No.1 that they already had a female child, who was conceived through artificial insemination, therefore, they are aware of the procedure of conception through assisted reproductive technique. The complainant was advised that it would be first necessary to ascertain whether viable motile sperms would be available in his urinary bladder before the AIH procedure could be attempted.

It is submitted by the OPs that complainant was referred by OP No.2 for semen analysis on centrifuged specimen to see the feasibility of resorting to AIH which could be possible only if sufficient number of sperms could be gathered from the husband. The process of only collection of sperms from the complainant was carried out by OP No.1. It is further stated that the complainant and his wife was made aware that there was no guarantee about the AIH procedure and the possibility of conception in such cases never exceeded more than 20%. It was up to them to decide whether they would want to continue with the AIH procedure or not. The procedure of artificial insemination was then carried out after the complainant and his wife clearly and specifically agreed for the procedure. The wife of the complainant was also examined and was advised to undergo basic investigation of blood and ultra sound to see that she was ovulating normally. The payments of Rs. 750/- and Rs. 3300/- were made by the complainant for the tests done on his wife however a sum of Rs. 5200/- which were charges for sperm collection and sperm survival studies remained unpaid as a complainant promised to pay it later. It is also stated by the OP that insemination procedure was carried out by a gynecologist namely doctor Mrs Suman Chanda who as a concession to the complainant was paid ₹1500. The receipt of this payment is annexed as r-1/15. However later on do behas categorically denied that any treatment was provided by him to the complainant or his wife and has also denied that the complainant or his wife would be cured after going through any such treatment as alleged. The op has further denied that he has either charged or was paid ₹45,000 as alleged by the complainant for the above procedure and associated investigation. It was also denied by the OP they that they had ever given assurance to the complainant that his wife would conceive the child. However, it is also stated that AIH procedure could be attempted but there was no guarantee of success. It is also stated that the complainant was never assured that through this procedure, a male child would be conceived by his wife. It is further stated by the OP that as per the complainant himself he already had one child through AIH treatment and therefore was well aware that this procedure entails a low percentage of success. It is further denied by the OP that a sum of ₹95,000/- was sought from the complainant for a repeat treatment. The OP has further reiterated that no treatment was provided to the complainant rather an AIH procedure was carried out for artificial insemination of the complainants wife and therefore they have not committed any deficiency in service as alleged by the complainant. They have further denied that any mental agony harassment or humiliation was ever inflicted on the complainant by the opposite party and therefore the OP was not liable to pay any sum much less the sum of ₹50,000 as alleged by the op. The OP has further stated that legal notice dated 31.07.2010 was issued to them by the complainant which was duly replied to by the OP and the copies of the same are annexed as annexure R1/7 (colly). Yet the complainant issued another legal notice on 01/03/2011 through another advocate which was also replied to. It is further reiterated by the OP that they have not charged ₹95,000 as alleged by the complainant.

Both the parties have filed their respective pleadings, evidence-affidavit, written submissions which have been gone through by this Commission in detail.

As per the documents filed by the OP, which are exhibited as 1/3(colly), it is clear that certain payments were made by the complainant to the OP. However, no such payment of ₹95,000 seems to have been made by the complainant to the OP as there is no receipt/ invoice/ cash memo reflecting it. It is also evident from the documents appended by the OP as exhibits
R 1/6 that the complainant was briefed about the success of the procedure and he was also given time to think about it. In their reply to the legal notice of the complainant the OP has reiterated what has been stated by him in his reply/ written statement.

This Commission is of the view that the complainant has not been able to establish his case as he has not provided any invoice/cash memo which shows the amount of ₹95,000 had been paid to the OP. Although the OP has categorically denied any procedure being carried out on the complainant, yet it is clear from the facts of the case that the OP did carry out some procedure on the complainant and his wife. Since the complainant has not been able to prove any payment being made to the OP, the present complaint fails and is dismissed without any order as to no costs.

File be consigned to the record room after giving a copy of the order to the parties. Order be uploaded on the website.