PER SHRI. S.M. RATNAKAR – HON’BLE  PRESIDENT

1)        By this complaint the Complainant has prayed that it be held that the Opposite Parties are guilty for deficiency in service.  The Opposite Parties jointly and severally be directed to refund the amount of Rs.7,65,000/- with interest @ 18% p.a. from the date of payment made by the Complainant till its realization.  It is also prayed that the Opposite Parties jointly and severally be directed to pay Rs.1 Lac towards the compensation for mental agony and Rs.50,000/- towards the hospital expenses, etc.  It is also prayed that the Opposite Parties jointly and severally be directed to pay Rs.25,000/- towards the cost of this complaint.

2)        According to the Complainant, the Opposite Party No.1 is a Trust, running Dignity Lifestyle Centre as an elder’s home at Neral, Tal. Karjat, Dist. Raigad.  The said Trust i.e. Opposite Party No.1 claimed to take best possible care of elders and patients residing at the aforesaid premises.  The Opposite Parties No.2 to 6 are the Trustees of the Opposite Party No.1. 

3)        It is alleged that the father of Complainant aged about 82 years was suffering from “Alzheimer”.  The father of the Complainant therefore, needed constant care attention and supervision, which the Complainant and his wife Dr. Veena could not give due to their professional commitments.  The Complainant after the search could get alternative service provider which could offer the best medical care and personal attention for his father i.e. Opposite Party No.1.  The copy of the booklet provided by the Opposite Parties is filed as Annexure ‘F’. In the said booklet under the title “Nightingale Scheme” it was indicated as follows –

            “In phase 1, three blocks of 26 cottages are being dedicated to looking after senior citizens with ailments.  Senior citizens requiring 24 hrs. assistance can take membership to these units.  A dedicated assistance station is built in the design so that nursing and the attender care is available all 24 hrs.  The architecture of these units is handicapped friendly.”

            It is submitted that impressed by the said information provided by the office bearers of the Opposite Party No.1 about the standard of care and facilities claimed to be available, the Complainant decided to book a room for his father in the said township.  It is alleged that it was told and assured by the Opposite Parties that the scheme Nightingale includes all the facilities such as, medical attainder and 24 hrs. personal medical care.

4)        According to the Complainant, the resident doctor of Opposite Party No.1, Dr. C.P. Murlidhara, visited Complainant’s father at Hiramongi Hospital, Mulund and certified him to be fit for admission at Opposite Party No.1’s township under the said Nightingale Scheme.  Father of the Complainant was allotted cottage no.41 and was admitted on 01/02/2008 after making the requisite payments as required by the Opposite Parties.  The said payments were made on 25/01/2008 as per Annexure ‘B’.  The total payment was made to the Opposite Party No.1 to the tune of Rs.5,29,100/- out of which an amount of Rs.4,00,000/- was towards refundable deposit.  Rs.96,000/- towards 6 months maintenance, Rs.33,100/- towards Inverter/Ambani Hospital Registration. 

5)        According to the Complainant, at the time of admission the Complainant was made to put his signature on the agreement Annexure ‘A’ and other papers, where the terms of the agreement were absolutely one sided.  It is alleged that the money paid by the Complainant were split up under various heads, one of which had indicated Rs.3 Lacs as “Donation”.  Though the Complainant never intended to donate such a huge amount to the Opposite Party No.1 but had to give it as a “Deposit”.  It is submitted that as the Complainant did not have any say and left with no other alternative, but had to sign those papers.  It is alleged that such unilateral contract signed under influence is null and void ab initio.

6)        According to the Complainant he and his wife used to visit his father as and when possible and during their visit the wife of the Complainant found that the Complainant’s father was not provided with proper medical attention.  Upon pointing out the same to the office bearers of the Opposite Party No.1, they assured to provide the same to the Complainant’s father. It is submitted that the father of the Complainant being diabetic patient the monitoring of regular blood sugar level was very much essential.  The Opposite Parties were also given to understand the care which the Complainant’s father would require.  The Complainant had also provided a Gluco-meter to the staff of the Opposite Parties and explained the method to use it. According to the Complainant, the Opposite Parties did not take proper care of his father from the qualified doctors appointed by the Opposite Parties for elderly and sick patients.

7)        It is alleged that on 01/06/08 the Opposite Parties informed to the Complainant through Dr. Dahake that his father needed to be admitted at Ambani Hospital as he was in “Diabetic Coma” and his blood sugar level had gone upto 275.  Immediately upon visiting Ambani Hospital by the Complainant after the call of the said doctor he noticed that the notes of the said Ambani Hospital had recorded blood sugar level as “40” and not “275” as was informed by Dr. Dahake of Opposite Party No.1.  According to the Complainant, on enquiry with Dr. Dahake he came to know that the blood sugar level of 275 was noted a week ago and he noticed that the Opposite Parties neither did give any treatment for the same, nor did they repeat the blood sugar levels of his father even after getting such a high reading.  It is submitted that this was gross negligence on the part of the employees of the Opposite Parties for which the Opposite Parties are vicariously liable.  It is the case of the Complainant that if at the relevant time his father had been given intravenous glucose he would have been recovered immediately and would not have suffered any further complications.  The Complainant states that the Opposite Parties wasted 1½ to 2 hrs. valuable time in shifting his father to the Ambani Hospital rather than giving him IV Glucose.

8)    It is alleged that on 06/06/08 when the Complainant and his wife expressed their wish to take Late Ramchandra Thakur to their home the Opposite Parties assured that henceforth there won’t be any short comings in medical care of him.  It was also enlightened by the Opposite Parties that Alzheimer patients should not be exposed to frequent change of environment.  Relying upon the assurances of the Opposite Parties the Complainant left his father with the Opposite Parties. The father of the Complainant after discharge from Ambani Hospital on 10/06/08 was taken to the Opposite Parties township.  Discharge card is Annexure ‘C’.  It is submitted that on 14/06/08 when the Complainant visited Opposite Parties township, he found that though his father was conscious and able to take food orally, he was kept on IV Fluids.  The Opposite Parties used to sent the blood of father of Complainant for sugar levels to local laboratory inspite the Complainant had arranged for the Gluco-meter which used to report only after 5-6 hrs.  According to the Complainant, in the meantime it was not possible to monitor or administer proper treatment.  There was also edematous swelling on both feet of the father of Complainant for which he received no treatment.  There was extreme pallor present but he was not given any medication for the same.

9)        It is alleged that thus, on 15/06/08, the Complainant left with no option but to take his father to Mulund for the treatment at Chandraganga Hospital where his father met with an ultimate sad demise on 14/07/08.  Annexure ‘G’ are the indoor papers of the said hospital.  The Complainant on 25/06/08 surrender the cottage to the Opposite Parties.  The Complainant then tried to communicate with the Opposite Parties on number of occasions for the refund of his money but Opposite Parties failed to refund the same. The legal notice given by the Complainant was answered by the Opposite Parties Lawyer and denied all the allegations of the Complainant including the fact that the Opposite Parties had charged Rs.17,000/- for the inverter to the Complainant.  The copy of the bill of inverter is annexed with the complaint which is dtd.25/01/2008.  The copies of legal notice and reply of Opposite Parties are filed at Annexure ‘E’ colly.

10)      It is submitted that the Opposite Parties through their lawyer are trying to threaten the Complainant and making false allegations of forcibly removing records from the custody of the Opposite Party.  According to the Complainant, by such new technique the Opposite Parties are harassing the Complainant mentally for which the Complainant must be compensated. The Complainant has claimed deficiency of services on the part of the Opposite Parties alleging that due to sheer negligence on the part of the Opposite Parties the Complainant had to face ultimate loss of his father.  According to the Complainant, the Opposite Parties had promised that his father would receive personal attention and proper medical care but they failed to do so.  The Opposite Parties failed and neglected to monitor the blood sugar levels of the Complainant’s father due to which he went into Hypoglycemic Coma and had to be admitted in Ambani Hospital.  According to the Complainant, all the complications and sufferings of his father could have been avoided, if the Opposite Parties had taken his proper care.                     

11)      According to the Complainant, the Opposite Parties failed and neglected to refund Rs.4 Lacs which was collected as refundable deposit.  The Complainant had claimed an amount of Rs.7,65,000/- from the Opposite Parties as shown in para 14(2) (D)(1)(2) and other reliefs as mentioned in para one of this order. 

12)      The Opposite Parties by their written statement contested the claim.  It is contended that the Complainant as the guardian on behalf of his father Late Ramchandra Thakur executed an agreement and completed the formalities for enrollment such as, filing up the nomination form, etc.  The copies of the same are Annexed as Annexure ‘A’ to the complaint.  The decision to enroll the father of the Complainant with the Opposite Party Trust was taken by the Complainant after going through the entire brochure of the township and being convinced about the facilities and services provided by the same and preferred to opt for Nightingale Cottage for his father.  After completing all the formalities for the enrollment the Complainant’s father was allotted cottage no.41 by the Opposite Parties as against payment made by the Complainant, such as, 1) Rs.4 Lacs as refundable portion of the deposit 2) Rs.3 Lacs as non refundable amount.  It is alleged that the nature of real dispute between the Complainant and the Opposite Parties is that concerning the refundable portion of the deposit i.e. Rs.4 Lacs.  It is alleged that the Complainant has not come before this Forum with clean hands and suppressed material fact and on that count he is not entitled for any reliefs.

13)      It is contended that the Complainant and his wife Dr. Veena Thakur on behalf of Late Ramchanda Thakur approached the Opposite Parties with intention to admit him to the Opposite Parties township as a resident in January, 2008.  The Complainant before coming to the Opposite Parties township had acquired full information about the working of it as also the facilities provided by the same.  The Complainant was provided with written literature and information memoranda, such as, payment option sheets, member data form, simplified features of agreement, proforma agreement, etc. by the Opposite Parties. The Complainant having been satisfied and convinced decided to admit his father at the township as their resident.  It is contended that the father of the Complainant who was suffering from Alzheimer, needed 24 hrs. physical assistance had voluntarily admitted in the said township on 01/02/08.  The Complainant was explained the available medical facilities and availability timings of the visiting Doctor Shrikant Dahake.  It is submitted that thereafter it was personal choice of the Complainant to admit his father.  It is contended that the father of the Complainant before being admitted to the township was admitted in Hiramongi Hospital, Mulund and was undergoing treatment of fracture of thy bone and diabetes. On 28/01/08 the Opposite Parties psychologists Mr. Murlidhara visited at the hospital where the treatment of the Complainant’s father was undergoing and who was at the relevant time was on IV Fluids and urine bag.  The father of the Complainant when admitted on 01/02/2008 at the township he was bed ridden suffering from large bedsores diabetes with kidney disease with Dementia Alzheimer’s type. He was drowsy and his mental condition was disoriented. The Opposite Party filed Dr. Dahake’s affidavit regarding the medical condition of Complainant’s father as Annexure ‘A-4’.  It is contended that at the township the care of Complainant’s father was taken with due diligence.  He was improving there within three months from his admission such as, from his weakness and started to walk, his bedsores were healed.  He started to speak and his mental status was improved due to adequate medical and nursing care.  His diabetes was also under control due to proper management of anti diabetic drugs from time to time, insulin dose was adjusted from time to time depending upon the requirement. There was no complaint from the Complainant during this period as referred in Annexure ‘A-4’ (Dr. Dahake’s affidavit).

14)      It is contended that on 01/06/08 the father of the Complainant became unconscious and got into coma.  The Opposite Parties immediately called Dr. Dahake, who after examining and checking the blood sugar level of the father of the Complainant started him IV Fluid immediately and advised to shift him to nearby Ambani Hospital in an Ambulance.  Accordingly the father of the Complainant was shifted to Ambani Hospital by the Opposite Parties immediately and also informed to the Complainant about the same.  According to the Opposite Parties, they had taken all good care and necessary steps to provide medical facilities to the father of the Complainant. On 10/06/08 the father of the Complainant was discharged from Ambani Hospital with instructions for further management only in a hospital set up as he was on insulin which required time to time monitoring of blood glucose under specialize care.  It is contended that the Complainant without paying any heed to the suggestion of the hospital, preferred to bring back his father to the township of Opposite Parties, inspite of very well being aware of the fact that the township surly provides the nursing care but is not a specialized Intensive Medical Care Unit.  It is contended that the said decision of the Complainant to bring back the father of the Complainant at the township was against the advice of the Ambani Hospital.  According to the Opposite Party, on 15/06/08 the Complainant’s wife Dr. Veena Thakur forcibly and without following the procedure, process or informing the authorities of the township of the Opposite Parties shifted the father of the Complainant from his cottage to Chandraganga Hospital where the Complainant’s father had sad demise on 14/07/08.  According to the Opposite Parties, the wife of the Complainant forcibly and illegally removed the medical records and files of the Complainant’s father maintained by the Opposite Parties, from the office of the Opposite Parties in their absence.  It is submitted that because of the said incident the Opposite Parties are left with no documents related to the Complainant’s father.  The Opposite Parties prayed that the Complainant be directed to produce all the documents stolen from the Opposite Parties office before this Forum.  It is contended that the Complainant is seeking various reliefs by making all sorts of false allegations and suppressing the material facts. It is contended that the purpose of filing of this complaint by the Complainant is not bonafide, as such he is not entitled for any reliefs.

15)      The other allegations made by the Complainant are denied.  It is contended that a new inverter at the cost of Rs.17,500/- was purchased for each resident and the same were installed there till date and no special charges were levied on the Complainant for the same.  It is submitted that the Complainant was aware of the medical facilities available in the township of the Opposite Parties and all the residents needing medical care were under regular observation of various staff and medical personnel and visiting doctor.  It is contended that Dr. Dahake treated the Complainant’s father.  It is contended that the Opposite Parties had refunded the total amount of Rs.4,45,008/- vide two cheques which were refused by the Complainant and as such the Complainant is not liable to receive any further amount as claimed in the complaint.  It is contended that the prayers made in the complaint are devoid of merits.  It is submitted that the complaint is liable to be dismissed under Sec.26 of the Consumer Protection Act, 1986 with compensatory cost.

16)      The Complainant has filed rejoinder-cum-affidavit of evidence. The Opposite Party No.6 Dr. Shreenivasan filed his affidavit in support of the written statement.  Both the parties filed their written arguments.  We heard the Ld.Advocate for the Complainant Smt. Yogita Bedekar and Ld.Advocate for the Opposite Parties Smt. Anjali Thakur and also perused the documents placed on record by both the parties.

17)      While considering the claim made by the Complainant as regards the amount of Rs.3 Lacs which he paid to the Opposite Parties vide Receipt No.493, dtd.25/01/08, it appears that the said receipt was issued towards donation providing exemption under Sec.80G of the Income Tax Act, in favour of the Complainant. From the brochure placed on record by the Complainant as well as by the Opposite Parties for the economy cottage of the Opposite Parties township the Opposite Parties used to get/charge Rs.4 Lacs as refundable deposit without interest and non refundable deposit payable ahead of admission Rs.3 Lacs. Thus, the amount of Rs.3 Lacs which the Complainant had deposited towards donation appears to have been deposited as non refundable deposit providing exemption under Sec.80-G of the Income Tax Act.  The case made out by the Complainant that the Complainant never intended to donate such a huge amount to the Opposite Parties but had to give it as a deposit and he was left with no other alternative but had to sign the papers of the Opposite Parties and accordingly he signed under the influence of the Opposite Parties cannot be accepted.  The Complainant being well educated person such type of contention is devoid of substance.  We therefore, hold that the claim made by the Complainant for refund of the donation/non refundable deposit amount of Rs.3 Lacs cannot be allowed in his favour. 

18)      As regards refundable deposits of Rs.4 Lacs it appears that there was a locking period of two years from the date of application of refund as mentioned in the documents at Exh.‘A-1’ filed with the written statement of the Opposite Parties.  The Complainant had deposited the said amount on 25/01/08 with the Opposite Parties vide Receipt No.494.  It appears that the Complainant had claimed the said amount from the Opposite Parties firstly on 17/11/08 through the legal notice issued to the Opposite Parties which is Annexure ‘E’ to the complaint. The Opposite Parties have contended that they have sent two cheques as per Exh.‘A-7’ colly. to the wife of the Complainant 1) of Rs.2,45,008/- dtd.15/04/2010, 2) of Rs.2,00,000/- dtd.15/05/2010, which were refused or avoided to accept by the Complainant.  The Complainant has come out with a case that the Opposite Parties never responded to his request for refund of Rs.4 Lacs.  It appears from the record produced by the Opposite Parties i.e. Exh.‘A-7’ colly. that the cheques were issued by the Opposite Parties in the name of Dr. Veena H. Thakur and Opposite Parties have come out with the case that the Complainant had refused or avoided to accept the said cheques, we find that the said defence raised by the Opposite Parties to absolve from their liabilities to pay the refundable deposit and other remaining amount to the Complainant cannot be accepted.  It is pertinent to note that all the payments as per the documents placed on record were made by the Complainant in his name to the Opposite Parties. The agreement was also executed in between the Opposite Party No.1 and the Complainant himself, thus, in our view the amount which was required to be refunded by the Opposite Parties was necessarily required to be refunded by it to the Complainant and not to his wife.  In our view the case made out by the Complainant that the Opposite Parties failed and neglected to refund Rs.4 Lacs which they collected from the Complainant towards refundable deposit can be accepted and the same can be considered as deficiencies in service of the Opposite Parties.  The Complainant is therefore, entitled to an amount of Rs.4 Lacs collected by the Opposite Parties as refundable deposit from the Opposite Parties alongwith interest.

19)      The Complainant has paid Rs.96,000/- as an advance amount for 6 months towards maintenance @ 16,000/- p.m. is not disputed by the Opposite Parties and the same is reflected in the document placed on record by the Opposite Parties at Annexure ‘A-7’ colly with written statement. The Complainant had also paid Rs.16,000/- towards one month reserve charges and Rs.17,000/- towards the cost of inverter to the Opposite Parties is also supported by the Receipt No.495 dtd.25/01/08 filed with the complaint as Annexure ‘B’.  Thus, the Complainant had totally paid an amount of Rs.1,29,000/- to the Opposite Parties towards the other charges is brought on record by the Complainant by documentary evidence. The Opposite Parties in their written statement in para 4 has specifically contended that a new inverter at the cost of Rs.17,500/- was purchased for each resident, and the same are installed there till date and no special charges were levied on the Complainant for the same therefore, cannot be accepted.  The Opposite Parties are therefore, liable to refund the said amount of Rs.17,000/- to the Complainant in view of their defence in written statement. The Opposite Parties in Exh. ‘A-7’ with the written statement have shown outstanding amount against monthly bills as per statement of accounts maintained for Ramchandra Thakur to the tune of Rs.50,092/-.  It thus, appears that till the father of the Complainant was in the township of the Opposite Parties, the amount which was outstanding against him was Rs.50,092/-, if the said amount would be deducted from the amount of Rs.1,29,000/- the Opposite Parties are liable to pay an amount of Rs.78,908/- to the Complainant.  The Opposite Parties have wrongly shown the remaining refundable amount to the Complainant in Exh.‘A-7’ with the written statement as Rs.45,008/-.  In our view the Opposite Parties by not refunding the said actual amount due to the Complainant as stated above but shown to have been refunded an amount of RS.45,008/- to the wife of Complainant which was much less amount than what was due to the Complainant. Thus, the Opposite Parties in our view had adopted unfair trade practice against the Complainant. The Complainant      is therefore, is entitled for an amount of Rs.78,908/- from the Opposite Parties towards other dues alongwith interest. 

20)      The Complainant has come out with the case that the Opposite Parties did not take proper care of his father though they were knowing that he is sever diabetic patient and thereby the complication were arose regarding the health of his father in our view can be accepted as it appears from the evidence of the Complainant that the Opposite Parties did not take proper medical care of his father.  The Opposite Parties did not file medical record in respect of the Complainant’s father and contended that the said record was stolen or taken away from the Administrative Office of the Opposite Parties file cupboard by the wife of the Complainant.  It is surprising to note that the Opposite Parties did not lodge any police complaint against the Complainant or his wife for such illegal act immediately or till today.  It is also pertinent to note that the Opposite Parties by making such allegations avoided to produce any medical record regarding what care the Opposite Parties Doctor had taken during the period when the father of the Complainant was admitted in the township of the Opposite Parties.  Furthermore, in the brochure placed on the record by both the parties wherein it is mentioned that “While our 100 bed Geriatric Care Hospital will provide life time medical assistance and care to those who need it.”  From the averments made by both the parties in their pleadings it appears that no such facility or hospital was available at the township of the Opposite Parties. There is no whisper regarding it in written statement that the Complainant’s father was provided medical treatment whenever required in the hospital maintained by the said township as mentioned in the brochure. The affidavit of Dr. Dahake which is tried to be relied by the Opposite Parties in our view is nothing but for the purpose to rescue from the deficiency of services alleged to be provided by the Opposite Parties to the father of the Complainant. It is also pertinent to note that the Complainant was compelled to take his father from the township of the Opposite Parties within 4-5 days from the discharge of Ambani Hospital and keeping his father after 10/06/08 for better treatment to the Hospital of Mulund necessarily shows that the services provided as regards the medical treatment and care to the father of the Complainant were not satisfactory. We thus, hold that on that count the deficiency of services alleged by the Complainant against the Opposite Parties is proved by the medical evidence of Ambani Hospital wherein it is mentioned that on the date of admission of Complainant’s father in the said hospital i.e. on 01/06/08 his blood sugar was of 40 and he was brought in unconscious stage.  Considering these facts we hold that the contention raised by the Complainant as regards deficiency of service of not taking proper care and providing medical attendance to Complainant’s father by the Opposite Parties can be said proved. The Complainant has prayed compensation to the tune of Rs.1 Lac for mental agony from the Opposite Parties.  We hold that an amount of Rs.75,000/- on this count in view of the aforesaid discussion and lapses on the part of the Opposite Parties would be just and proper.  The claim made by the Complainant against the Opposite Parties of Rs.50,000/- towards the hospital expenses in our view cannot be granted as there is no such agreement between the Complainant and the Opposite Parties.  The Complainant is therefore, not entitled to the said amount as claimed from the Opposite Parties. The Complainant is entitled for Rs.10,000/- towards the cost of this proceeding from the Opposite Parties.  In view of the aforesaid discussion the Complainant is entitled to Rs.4 Lacs towards refundable deposit, Rs.78,908/- towards other dues alongwith interest @ 9% p.a. from the date of legal notice to the Opposite Parties i.e. 17/11/08 till its realization.  Hence, the following order is passed –

O R D E R

i.                    Complaint No.266/2011 is partly allowed against the Opposite Parties and held that they are guilty of deficiency of service to the Complainant’ father.

ii.                 The Opposite Parties No.1 to 6 are directed to pay jointly and/or severally an amount of Rs.4,00,000/- (Rs. Four Lacs Only) towards the refundable deposit plus Rs.78,908/- (Rs.Seventy Eight Thousand Nine Hundred Eight Only) towards other dues with interest @ 9% p.a. from 17/11/2008 till its realization to the Complainant.   

iii.               The Opposite Parties No.1 to 6 are directed to pay jointly and/or severally Rs.75,000/- (Rs.Seventy Five Thousand Only) as compensation for the mental agony suffered due to deficiency in service to the Complainant

iv.               The Opposite Parties No.1 to 6 are directed to pay jointly and/or severally Rs.10,000/- (Rs.Ten Thousand Only) towards the cost of this proceeding to the Complainant. 

v.                  The Opposite Parties No.1 to 6 are directed to comply the aforesaid order within one month from the date of receipt of this order.

vi.               Certified copies of this order be furnished to the parties.