| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C. No. 138 of 11-05-2018 Decided on: 30-08-2022 Amarbir Singh Bandesha aged about 42 years S/o Sh. Randhir Singh R/o H.No.2, Khalsa Colony, Fatehgarh Churian Distt. Gurdaspur, now at present Kari Testakksei 13, 4314, Sandnes Norway, through its power of attorney holder Sh. Amarjit Singh S/o Massa Singh R/o Talwandi Bhungrian PO Dusanjh, Distt. Moga. ........Complainant Versus Delhi Hair Clinic, Near Street No.1, Bibiwala Road, Bathinda, through its Prop./Incharge. Delhi Nursing Home, Near Street No.1, Bibiwala Road, Bathinda, through its Prop. Dr. Sanjay Garg. The New India Assurance Co. Ltd. Divisional Office, The Mall Bathinda Punjab.
.......Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh.Kanwar Sandeep Singh, President Smt. Paramjeet Kaur, Member Present For the complainant : Sh. Sarabjit Singh, Advocate. For opposite parties : Opposite party No.1 ex-parte. Sh. Sanjay Goyal, for OP No.2. Sh. Gurinder Singh Sidhu, for OP No.3 ORDER Kanwar Sandeep Singh, President:- The complainant Amarbir Singh (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against Delhi Hair Clinic and others (here-in-after referred to as opposite parties). Briefly stated, the case of the complainant is that the complainant is residing at Norway, so he appointed Sh. Amarjit Singh S/o Massa Singh R/o Talwandi Bhungrian, P.O Dusanjh, Distt. Moga as his power of attorney and the present complaint is being filed through Amarjit Singh, who is competent and authorized person to file the complaint. It is alleged that the complainant Amarbir Singh Bandesha is suffering from Baldness from central part of the head. The complainant contacted the opposite parties on phone, who assured the complainant that he is experienced doctor for transplantation of hair and he will transplant the hair of the complainant with modern equipments and the hair will grow smoothly. After assurance, the complainant fixed the appointment for the transplantation of hair on central part of his head and the opposite parties also disclosed that an amount of Rs.36,000/- will be the expenses of hair transplantation. That after fixing the appointment with the opposite parties, the complainant came to Bathinda from Norway and on 5.12.2017 the opposite parties after examining and check up of the complainant, referred the complainant for some test, which was got done by the complainant and charges of Rs.36,000/- were also deposited by complainant. The opposite parties obtained consent and signature of the complainant on many blank and printed papers. It is also alleged that on 5.12.2017 the opposite parties started surgery for transplantation of hair of complainant and took a bunch of hairs from right, left and back side of head of the complainant and harvested the same at the central part of the head of the complainant and the opposite parties took 5-1/2 hours for the said surgery. The complainant alleged that during settlement, the opposite parties assured the complainant that the hair will grow slowly slowly on both side from where the bunch of hair was taken and where the hair transplantation has been done and on this assurance, the complainant went back to Norway. It is further alleged that after some time the complainant noticed that from where the bunch of hair was taken, the same has not been grown up. The complainant made a telephone to the opposite parties 29.12.2017 and one Deep assistant of opposite parties told that "jo nikale hai oh to nahi aunde lekin duje ball os area nu kover kar lainde aaa. On 05.01.2018, complainant came to India and approached the opposite parties, who specifically told that your donor area will not be grown up, then the complainant consulted with another Dr. Prabhdeep Sohi, of Reviva Clinic Sector 17 Chandigarh, who told the complainant that the opposite parties has wrongly taken the bunch of hair from the donor area, whereas the hair was to be plucked from different-different area in lower quantity and now re-plantation is required to be done at the donor area. The complainant approached the opposite parties and requested him either to do re-plantation at donor area or refund the amount of Rs.36,000/- alongwith other traveling expenses, but the opposite parties totally refused to accede the request of the complainant. Thereafter under compelling circumstances, the complainant go done surgery of hair plantation of donor area and paid Rs.50,000/- to the said Reviva Clinic. The complainant alleged that due to negligent act of the opposite parties, he has suffered physically and mentally and has also suffered financial loss for which he claims compensation to the tune of Rs. 2,00,000/-. On this backdrop of facts, the complainant has prayed for directions to the opposite parties to pay Rs.86,000/- which he incurred for hair transplantation, Rs. 1,50,000/- for traveling charges in addition to Rs. 2,00,000/- as compensation besides Rs.11,000/- as litigation expenses. Registered A.D. Notice of complaint were sent to the opposite parties. None appeared on behalf of opposite party No. 1, and as such, exparte proceedings were taken it. The opposite party No. 2 & 3 appeared through counsel and filed written version. The opposite party No.2, in its written version raised legal objections that the complaint is not maintainable and that the complainant has no cause of action and locus-standi to file the complaint. Even otherwise the opposite party No. 2 has obtained Doctor's Indemnity Insurance Policy from opposite party No. 3 and the liability if any, is to be borne by the opposite party 3. That the complaint is frivolous, vaxatious, malafide and instituted with black mailing motive. It tends to tarnish and incriminate the fair name and reputation of the opposite party unnecessary. That the complainant has not approached this Commission with clean hands and has concealed the material facts. The complaint has been filed on totally wrong facts and concocted version just to satisfy ego and to tarnish the fame and fair name of the opposite party out of grudge. That intricate and contentious question of law and facts are involved and the matter is required to be adjudicated before the Civil Court. On merits, the opposite party No. 2 has pleaded he do not remember if any talk with the complainant ever took place on telephone. It is specifically denied complainant paid Rs. 36,000/- for his treatment rather total rounded off amount of Rs. 30,000/- which includes service charges/fee of doctor of Rs. 20,000/- and applicable taxes/GST, medical tests, PRP and medicines etc. were incurred. The opposite party No. 2 admitted that complainant visited the hospital of opposite party on 05.12.2017 and his medical tests were got done and then complainant was treated for hair transplantation. It has been pleaded that the complainant introduced himself to be MBBS doctor. All the pros and cons of the surgery were duly explained to complainant and he thereafter gave his consent after understanding the same. The roots of hairs were taken from back side of the head at the asking of complainant himself and the same were harvested on central part of head of complainant. The procedure was done in local anesthesia and the patient remained fully conscious during the transplantation. It is cosmetic procedure and patient talks and take part in the treatment. The opposite party No. 2 even guarantees any service related problem and free correction for one year. It has also been pleaded that that complainant was made aware before the start of surgery of the fact that hair will grow slowly on surgical area and not on the donor area from where the roots of hair were taken for transplantation. It is foolish for a doctor to aver that a hair root (any organ) once removed will re-grow at original place The complainant himself is a doctor and is well aware of the fact that the hairs are not re-grown on the donor area. After controverting all other avermens of the complainant, the opposite party No. 2 prayed for dismissal of complaint. The opposite party No. 3 in its written reply raised legal objections that opposite party No.2 is a highly qualified and renowned doctor in hair transplantation and harvesting the hair on every part of body and has vast experience in treatment of hair transplantation. That it is not a case that the opposite party No.2 was negligent in hair transplantation or have not take necessary care and precaution which was expected from him. That opposite party No.2 has obtained Professional Indemnity Insurance (Doctor) Policy vide policy No.36060036170400000004 effective from 18.06.2017 to 17.06.2018 and the same is a contract of insurance to indemnify the insured regarding any legal liability /award /order which has been satisfied by the insured. Since no award/liability/order has been passed against the opposite party and in favour of complainant and no compensation has been awarded to the complainant so far, the opposite party No. 3 cannot be impleaded as party at this stage and name of the replying opposite party is liable to be deleted from the array of the opposite parties. That as per Exclusions clause 7(1)(v) of terms and condition of policy, no liability shall attached to the answering opposite party No. 3 in respect of claims under the insured arising from the performance of cosmetic plastic surgery, hair transplant, punch grafts, flap rotations. That no expert evidence has been placed on file, which could prove that the opposite party was negligent in any manner in providing the treatment to the complainant. That liability of opposite party No. 3 to indemnify the insured is limited as per terms and conditions of the insurance policy. The policy does not cover liability as per terms and conditions of policy. As per Exclusion clause 7(2)(v), policy cannot cover risk arising from fines, penalties, punitive or exemplary damages or any other damages resulting from the multification of compensatory damages. That complainant has not come with clean hands before this Commission and has suppressed true and material facts. That the dispute and complaint issues raised in involves intricate question of law and facts and matter involves is complicated one which requires extensive evidence and cross-examination of witness and same cannot be decided in the summary proceedings before this Commission. That the amount of compensation claimed is highly excessive and exorbitant one. Even otherwise the opposite party is not liable at all. That the complainant is not a consumer of opposite party No. 3, as such no privity of contract exits between complainant and answering opposite party. On merits, the opposite party No. 3 reiterated its version as pleaded in legal objections and detailed above. In the end, the opposite party No. 3 also prayed for dismissal of complaint. In support of his complaint, the complainant has tendered into evidence affidavit of Amarjit Singh dated 07.12.2018 (Ex.C-1), and the documents (Ex.C-2 to C-10). The complainant also tendered photographs (Ex.C-11 to Ex. C-16) in additional evidence. To rebut the claim of the complainant, opposite party No.2 has tendered into evidence affidavit of Dr. Sanjay Garg dated 3.08.2018. The opposite party No. 3 has tendered into evidence affidavit dated 26-9-2018 of Ashish Pal (Ex.OP-3/1) and documents (Ex.OP-3/2 & Ex.OP-3/3). We have heard learned counsel for parties and gone through the file carefully. Learned counsel for parties have reiterated their stand as taken in their respective pleadings and detailed above. In the case in hand, the complainant on 5-12-2017, got done surgery for hair transplanation from the complainant and paid Rs. 36000/- to the opposite parties (opposite party No.2 admitted receipt of Rs.30,000/-). The grudge of the complainant is that opposite parties took bunch of hairs from right, left and back side of the head of the complainant and harvested the same to the central part of the head but from where the bunch of hair was taken has not been grown up. The complainant got done another surgery for transplanation of hair at said donor part and incurred expenses to the tune of Rs. 50,000/-. The version of the opposite party No. 2 is that the roots of hairs were taken from back side of the head at the asking of complainant himself and the same were harvested on central part of head of complainant. The procedure was done in local anesthesia and the patient remained fully conscious during the transplantation. It is cosmetic procedure and patient talks and take part in the treatment. The contention of opposite party No. 2 that the roots of hairs were taken from back side of the head at the asking of complainant himself and procedure was done in local anesthesia and patient remained fully conscious, is not tenable. The opposite party No. 2 has nowhere pleaded that prior to transplanation, he informed the complainant that hair at donor part will not be grown up. If local anesthesia was given and patient was conscious at the time of transplanation, it is not the patient who has to decide the treatment rather the decision of treatment is to be decided by the treating doctor. Moreover, if hair at donor part did not grow then what is the use of transplanation for which complainant paid sufficient amount to the opposite parties. To prove his case complainant brought on file Whatsapp chat (Ex.C-2) which shows that after hair transplant complainant brought to the notice of opposite party No.2 that there is no hair at donor area and it looks like Bald but opposite party No.2 did not suggest any solution. Opposite party No.2 has pleaded in his reply that they even gaurantee any service related problem and free correction for one year but perusal of Ex.C-2 reveals that opposite party No.2 did not even bother to reply when complainant asked for re-transplant at donor area. Further perusal of Ex.C-2 reveals that opposite party No.2 has not rebutted the fact that hair transplantion was done by a girl of hospital of opposite party No.2 not by the doctor himself. Complainant has also placed on file document Ex.C-8 to prove that thereafter he had to got done hair transplant surgery from another hospital namely Reviva Clinic Sector-17,Chandigarh by making of payment Rs.50,000/-. Ex.C-9 is another document proving status as Bald spots bi-lateral temporal reason 5x5 cm each due to over harvesting of the donor area. Thus, Analyising facts, circumstances and keeping in view the evidence placed on file by the parties, this Commission is of the considered opinion that there is negligence/deficiency in service on the part of the opposite parties in not providing proper treatment to the complainant despite charging for the same. This is a case where opposite parties transplanted the hairs to cover Bald area and created another Bald area by over harvesting the donor area and the complainant again had to got transplanation of hair from another Clinic. Hence, complainant is entitled to payment of said amount in addition to some amount of compensation for physical and mental harassment which he suffered at the hands of the opposite parties. In view of what has been discussed above, this complaint is partly allowed with Rs.10,000/- as cost and compensation against opposite parties No. 1 & 2. The opposite parties No. 1 & 2 are further directed to pay Rs.50,000/- (spent by complainant on subsiquent hair transplantation) to the complainant. The compliance of this order be made by the opposite parties No. 1 & 2 jointly and severally within 45 days from the date of receipt of copy of this order failing which the amount of Rs.50,000/- shall carry interest @ 8% p.a. till realization. The complaint could not be decided within statutory period due to Covid pandemic and heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record room. Announced:- 30-08-2022
(Kanwar Sandeep Singh) President (Paramjeet Kaur) Member
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