By : SMT. CHANDIRAMA CHKRABORTY, MEMBER

Interference of this Forum has been sought for by the Complainant, contending gross negligence, deficiency and unfair trade practice in rendering service towards the Complainant by the Opposite Party.

In epitome, the fact stated in the complaint, is that, the Complainant is the husband of Malina Maity a patient of the OP no. 1 doctor who is also associated with the OP nos. 2, 3 and 4. The wife of the Complainant had been treated by the doctor OP. no. 1 in the chamber of the OP no. 4. The Complainant and his wife are the issue less couple. Being convinced by the leaflets of the OP no. 4 in the last part of 2016 the Complainant consulted with the OP no. 1 doctor who used to treat issue less patients for having their issue. After full examination of the patient, the OP no. 1 assured the Complainant that he would arrange everything so that the wife of the Complainant can get conceived. After some day's treatment in the center of the OP no. 4, the OP no. 1 advised the Complainant for better treatment and the Complainant followed the same. Thereafter various types of examination were done in the chamber of the OP no. 2 and 3 under supervision of the OP no. 1 doctor. The OP no. 1 doctor thereafter assured the Complainant that his wife was eligible for IVP process and he gave guarantee for their issue for a cost of Rs. 90,000/- only and aslo assured that if the doctor fails to do the same he would return the amount. The doctor proceeded with the IVP process for a long time, but he could not bring any satisfactory result. All the expectation and hope of the Complainant and his wife exhausted. Thereafter when the couple came to the doctor to do the needful and advice to that effect, the OP no. 1 avoided and neglected them and only advised to reduce the food habit of the Complainant’s wife and the wife of the Complainant reduced her food and thus his wife became too much shaky and week. Again they came to the OP no. 1 for consultation and remedy but the doctor ousted them without any proper advice.

Thereafter the Complainant consulted with another doctor and came to know after proper examination by those doctors that the plate late of blood of the patient (Complainant’s wife) had decreased very seriously and she may die due to such weakness. Lastly being desperate the Complainant came to the OP no. 1 at the center of the OP no. 4 and as per assurance of the OP no. 1 they demanded return of the money they paid. The OP no. 1 then drove them out of the chamber and told that he would not return the amount.

Thus it is the case of the petitioner that they have been totally exhausted and economically finished due to the fraid promise of the OP no. 1 nor they got the child they cherished what amounts to negligence and deficiency in rendering service by the Opposite Parties towards the Complainants for which being victimized and harassed the Complainant has to file the instant case seeking adequate redressal against the Opposite Parties with prayer for a direction upon the OPs to pay the Complainant a sum of Rs. 1,05000/- only which he has paid for IVF processing and also for mental agony, financial loss and harassment as well as Rs. 800000/- for various examination, treatment and harassment and other reliefs.

Despite service of the notice, the Opposite Party no. 4 never appeared before the Forum himself and/or through their representative/Ld. Advocate within the specified period for filing the Written Version to contest the case  and  so the instant case has been heard ex-parte against the Opposite Party No. 4.

Resisting the complaint, the Opposite Party No. 1 to 3 had filed the Written Version denying the contention made by the Complainant in his complaint and stating inter alia that the case is not maintainable and the complainant has no cause of action to file the instant case and the.

The specific defence of these Ops no. 1 to 3 in terse is that the Complainant is owner of a medical shop and has all along been fully aware that there was no full proof medical treatment for conception. There are treatments for infertility without any guarantee of conception. The OP no. 1 had advised certain medical investigation necessary for identifying the reason of infertility of the couple and on the request of the wife of the Complainant, the OP no. 1 carried the tests at his center. The OP no. 1 had followed all the medical protocols for the treatment of infertility and conducted the IUI on Smt. Malina Maiti for her conception but the wife of the Complainant could not conceive, and on further investigation it was revealed that the wife of the Complainant did not have proper oocytes, commonly known as eggs for fertilization and for which on consent of the Complainant and his wife it was agreed that a process of IVF would be carried out with the help of donor oocytes. Hence, the couple signed all the forms for admission consent together with the embryo Transfer Consent, and the said consent for oocyte etc for IVF process. There was no assurance from the OP No. 1 nor the OP no. 1 received Rs. 90,000/- only for the purpose of IVF process . It is the further assertion of the OP no. 1 that the couple tried to protrey a picture wherein it seems that they were willing to purchase a child and not they were undergoing a medical procedure. The Complainant requested the OP no. 1 Dr. Daga to cover all the expenses of the IVF treatment under the package cost wherein all the costs of the procedure would be covered by the said package and accordingly the Complainant had paid the money. It is the further contention of the OP no. 1 that being a medical treatment, IVF does not and can not have hundred percent success rate, although it is a worldwide recognized mode of alternative reproduction technique. As the wife of the Complainant was overweight, the OP no. 1 advised for food control as overweight is hindrance to conception. From all the prescriptions of the patient issued by doctors it would be evident that she was suffering from general weakness and there was appearance of ecchymotic paths over the skin for which it was obvious for the Complainant's wife to consult another doctor of medicine. Thus, all the Opposite Parties denied any deficiency and negligence in rendering service towards the Complainant and prayed for dismissal of this case.

Seen complainant and the affidavit in-chief, filed by the complainant and also the writt4en version and questionnaires filed by the Ops and the answers to the questionnaires filed by the complainant/. Perused the documents filed by both the parties. Considered.

Points for Determination. :

1. Whether the instant case is maintainable?

2. Whether the Complainant is a consumer?

3. Whether there is negligence or deficiency in service on the part of the O.Ps ?

4. Whether the Complainant is entitled to get the relief as prayed for ?

                                                            Decision with Reasons.                     

All the issues are taken up together for discussion and decision.

The main dispute between the Complainant and the Opposite Parties is that, whether the Opposite Parties treated the Complainant's wife negligently and are justified to not refunding the total paid amount to the Customer/Complainant or not.

On overall evaluation of the argument made before us by the Complainant in person  along with his Ld. Advocate and the Ld. Advocate for the Opposite Party No. 1 to 3 and  on scrutiny of the complaint and the affidavit in-chief, filed by the Complainant and also the Written Version and questionnaires filed by the OPs and the answers to the questionnaires filed by the Complainant and all the documents filed by both the parties. It is evident that admittedly the Complainant is a consumer under the Opposite Parties by treating the Complainant's wife for birth of a child as the Complainant and his wife are issue less.

It is revealed from the photocopies of the documents filed by the Complainant that on the basis of leaflet of the OP no. 4 contacted with the OP no. 1 Dr. Daga who assured the Complainant and his wife that the Doctor would be able to make her conceived. After completion of all the formalities the Complainant started treatment of his wife under the OPs and had paid a sum of Rs. 90,000/- only for the purpose of IVP process , the OP doctor conducted all the process and treated the patient but failed to give any satisfactory result for which the Complainant has prayed for refund of the said paid amount of Rs. 90,000/- only and other reliefs as per Complaint.

In every case the initial burden to prove the allegations made in the Complaint lies with the Complainant. This initial burden remains even if a patient is admitted to a hospital/clinic and subsequently there is medical negligence. At the same time it cannot be disputed that once a patient is admitted to a hospital/clinic it is the responsibility of the later to provide the best possible service. Once the claimant successfully discharges the initial burden that the hospital/clinic was negligent, the burden shifts on to the hospital/clinic and the doctor concerned who treated the patient so as to establish that there was no negligence involved in the treatment. The hospital/clinic may discharge the burden by examining the doctor who treated the patient. The burden of the hospital is greater than that of the Complainant. – Savita Garg. Vs. Director, National Heart Institute (2004) 8 SCC 56.

On the basis of the above decision, now let us see whether the OP no.1 to 3 are liable to refute the paid amount as alleged by the Complainant and how far the Complainant has been able to discharge their burden of proving deficiency of service on the part of the OPs.

It is revealed from the para 9 of the Written Version filed by the contesting OPs no. 1 to 3 wherein the Ops specifically stated that they did never give any assurance to the Complainant and his wife that she would be surely conceived. There is no full proof medical treatment for conception. There are treatments for infertility without any guarantee of conception.

Ld. Advocate for the OPs have categorically submitted that medical treatment ie IVP treatment does not and cannot have a hundred percent success rate, although it is a worldwide recognized mode of alternative reproduction technique. The doctor and nursing home staff tried their best to get conception of the wife of the Complainant but due to other disease of his wife, such as overweight etc. wife of the Complainant could not able to be conceived.

The Ld. Advocate for the Complainant has filed series of documents but on scanning of those documents nowhere it is found that the OP doctor ever provide any guarantee of conception to the Complainant and his wife or that the money would be refunded in case of failure of the medical treatment for IVP process.

The Complainant has filed examination- in chief on affidavit and reproduced the entire complaint story. He was questioned by the OPs from different angels, such as to whether they carried out all the medical investigations before carrying out the process of IVP, the Complainant avoided to give such reply. Also in question No. 6 as to whether the Complainant was asked that there is no certainty that pregnancy will result positively from these procedures even in case where good quality of embryos are transferred. The Complainant also avoided to answer the same by saying that he was not aware of the subject matters of the forms he signed. In question No. 10 the Complainant was questioned that being a medicine shop owner could he give grantee to the patients that the medicines would certainly cure the concerned patient, the Complainant also escaped this answer by terming it as baseless.

The Complainant has not come before this Forum with any specific allegation of deficiency and/or negligence in the treatment made by the OPs, but he only claimed to get refund of the money he had paid as cost of IVP process and failure of conception of his wife. But as we have observed earlier that there is no guarantee of cure of any disease or transplantation of any organ or invocation of IVP process for conception, the claim of the complainant cannot be entertained as a deficiency of service.

Moreover, it is evident from the photocopies of the documents that the Ops first treated by the way of IUI process and after failure of the said process , the OP doctor suggested to go through the IVF process.

It is also manifestly revealed from the 'Consent Form' that the Complainant has been wilfully signed and written by his own hand writing and agreed to do the said process of IVF which is admitted by the Complainant at the time of the hearing argument.

Thus, it is crystal clear from the above discussion that the Complainant has failed to prove that the Opposite Party no. 1 to 3 and the Opposite Party no. 4 have negligently treated the Complainant's wife which may  be considered as deficiency in service and definitely not the deficient and/or negligent manner of rendering service towards the Complainant.

So the unanimous decision of the Forum is that the Opposite Parties  are not deficient and/or negligent in rendering service towards the Complainant and  are not be liable to refund the said paid money amounting to Rs. 90,000/- only to the Complainant and neither be liable to pay any compensation towards the Complainant and the complaint cas3 is  liable to be  dismissed  against all the Opposite Parties. 

Therefore, in the light of the above discussion it is finally and commonly decided by the Forum that the Complainant has not successfully proved the case and is not entitled to get any relief as prayed for, and consequently, the points for determination are decided accordingly.

Consequently the consumer complaint case fails.  

In the result, we proceed to pass

                                           O R D E R

That the CC case No. 300 of 2018  be and same is dismissed on contest against  all the Opposite Parties , however without any cost.

Let a plain copy of this order be made available and be supplied free of cost, to each of the parties by hand  to the parties and/or  to the  Ld. Advocate/Agent on record, under proper acknowledgment / be sent forthwith under ordinary post  to the concerned parties as per rules, for information and necessary action.