BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.219 of 2016

Date of Instt. 19.05.2016

Date of Decision: 27.02.2018

Smt. Manjit Kaur W/o Sh. Lalli resident of Village Sangowal, Tehsil Phillaur, Distt. Jalandhar.

..........Complainant

Versus

Dr. Harpreet Kaur Chhabra c/o Chhabra Maternity % Neuro Care, 53, Indra Park, Near Cheema Chowk, Opp. Thakur Cold Store, Wadala Road, Jalandhar.

….….. Opposite Party

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Harvimal Dogra (Member)

Present: Sh. Paramjit Rajput, Adv Counsel for the Complainant.

Sh. Harsh Bhatt, Adv Counsel for the OP No.1 and 2.

Order

Karnail Singh (President)

1. This complaint is presented by the complainant Manjit Kaur, wherein alleged that she is the resident of Village Sangowal, Tehsil Phillaur, Distt. Jalandhar and she relying upon the advertisement published by the OP in the Newspaper regarding 100% guarantee of baby to issueless couples by treatment in their nursing home/hospital and accordingly, the complainant approached the OP for treatment and also deposited huge charges amount of Rs.1,45,000/- by way of installments. Apart from that the complainant also bear substantial amount of medicines, which was prescribed by the OP. The OP alleged in the reply of the legal notice that the complainant has entered into an agreement as per the precedent of the hospital and after reading and understanding and admitting the same, signed thereon, even thumb marked it on 26.02.2015, in which the detailed fact regarding the IVF treatment has been elaborated and even specifically mentioned the success of IVF, ICSI to be 40 to 60 percent and differs from person to person, it is worth mentioning that how an illiterate person can read the terms and conditions of the agreement, he or she can only know what has been narrated to him or her. If the complainant had read the terms and conditions herself and understood that success rate of treatment is 40 to 60 percent only, then she would not have spent such huge amount. The matter of fact is that the complainant has been asked to put thumb impression on the agreement narrating her that it is just a formality, which is to be fulfilled necessarily before starting the treatment and thereafter, the complainant gave a legal notice through her counsel to the OP with a request to accept the genuine request of the complainant and compensate the complainant, but the OP instead of accepting the claim of the complainant gave vague reply of the said notice and whereby declined and accordingly, the instant complaint filed with the prayer that the complaint of the complainant may be accepted and a compensation/damages may be granted to the complainant, to the tune of Rs.3,00,000/-, due to malpractice, unfair trade practice and deficiency in service on the part of the OP.

2. Notice of the complaint was given to the OP, who filed a reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable as per the provisions of the 'Consumer Protection Act' and as such, the same is liable to be dismissed and further averred that the complainant has not come to the Court with clean hands rather suppressed the true facts from the Forum, just to take the undue advantage and to harass the OP and just to grab illegal money from the OP. It is further averred that the present complaint is filed without any cause of action, no cause of action has ever been arose against the OP, as the OP never gave assurance to the complainant or anybody for 100% success rate of IVF/ICSI treatment, but always do her level best for the proper treatment to give fruitful results to her clients. Moreover, as per the medical science, 100% result of IVF/ICSI treatment is not assured, but depends upon the medical condition, health and other related medical factors of person to person. It is further alleged that the complainant is estopped from filing the present complaint by her own acts, conducts, admission or acquiescence. As the complainant herself approached to the OP for the purpose of IVF treatment and thereafter, the complainant and her husband with their free consent, voluntarily entered into an Agreement as per the precedent of the OP's hospital and after reading, understanding and admitting the same in Punjabi Language as well as English Language, signed it and even thumb marked it on 26.02.2015, in which the detailed facts regarding the IVF treatment has been elaborated and even specifically mentioned the success rate of IVF/ICSI to be 40% to 60% and differ from person to person. It is further averred that there is no deficiency in service on the part of the OP, hence, the present complaint is not maintainable. It is further submitted that the complainant at the very beginning stage of the treatment, was suffering from Uterus Problem and for that on 20.03.2014, Laparoscopy and Hysteroscopy were done upon the complainant and the same was also rechecked on 22.10.2014 and at that time, Cavity in the Uterus was also detected/seen. The medical treatment was prescribed after 20.03.2014 and further on 22.10.2014 for making the use of uterus of complainant to be more acceptive for conceiving. Thereafter, finally IVF treatment was attempted on 26.02.2015, but the same was not successful. On merits, the allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.

3. In order to prove the case of the complainant, complainant herself tendered into evidence her duly sworn affidavit Ex.C-1 alongwith some documents Ex.C-2 Reply to Legal Notice, Ex.C-3 Copy of Receipt, Ex.C-4 Copy of Legal Notice, Ex.C-5 Copy of Hospital File, Ex.C-6 to Ex.C-9 Copies of Hospital Receipt-cum-Bill, Ex.C-10 Copy of Hospital Reports (Consisting of 18 to 21 Pages), Ex.C-11 and Ex.C-12 Copy of Reports and Tests of IVF Centre. Ex.C-13 Copy of Haematology Tests of Mattu Clinical Laboratory, Ex.C-14 Test Report of Lal Path and Ex.C-15 Copy of Advertisement and then complainant closed her evidence.

4. Similarly, OP herself tendered into evidence her affidavit Ex.OP/A and further counsel for the OP tendered some documents Ex.OP/1 to Ex.OP/5 and closed the evidence on behalf of the OP.

5. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

6. Precisely, the allegations made by the complainant in the complaint are that she was relied upon an advertisement published in newspaper regarding 100% guarantee of baby to issueless couples by treatment in the nursing home/hospital of the OP and accordingly, the complainant approached the hospital of the OP for treatment and deposited an amount of Rs.1,45,000/- for treatment and also beared the expenses of medicines prescribed by the OP, but despite treatment, the complainant could not get 100% result and it is a clear cut deficiency of service on the part of the OP as well as unfair trade practice and accordingly, claimed for compensation of Rs.3,00,000/-.

7. The allegations of the complainant have been refuted by the OP by filing a reply and categorically took a plea that no advertisement has ever given by the OP for 100% success of IVF/ICSI treatment in the hospital of the OP and also alleged that the instant complaint has been filed by the complainant, just to grab a money from the OP and further alleged the success rate of IVF/ICSI was very well explained to the complainant i.e. 40 to 60 percent, in the agreement executed between the parties and its contents were read over and make understood to the complainant in simple language and then complainant put her thumb impression as well as signature in Punjabi language and further submitted that the complaint of the complainant may be dismissed.

8. We have sympathetically considered the plea of both the parties and find that the main allegation of the complainant is that she relied upon an advertisement published in the newspaper regarding 100% guarantee of baby to issueless couples, given by the OP, but the said newspaper has not been brought on the file by the complainant to give a strength of her allegation as made in the complaint. The complainant tendered into evidence Ex.C-15 i.e. Copy of Advertisement and accordingly, we have gone through the said copy of advertisement Ex.C-15 and find that it is not a newspaper item rather it is pamphlet, issued by the OP for advertisement, but if we go through the said document Ex.C-15, then we can say without any hesitation, there is no 100% guarantee given in that advertisement. So, from this platform, the complainant has miserably failed to establish the allegations made against the OP.

9. Further, we have gone through the entire contents of the complaint and find that there is no allegation against the OP in regard to negligence or not giving a proper treatment, if there is no negligence alleged by the complainant, then how we can consider that the treatment given by the OP is not according to prescribed method of the medical jurisprudence. Even, we have gone through the documents relating to the hospital of the OP, brought on the file by the complainant i.e. Ex.C-3 to Ex.C-14 and find that no negligence on the part of the OP is appeared in these documents and even the complainant has not examined any other doctor to prove that there is any negligence on the part of the OP, if so then, how we can assess any negligence or deficiency in service on the part of the OP.

10. It is admitted case that the OP started giving a treatment to the complainant, but after getting an agreement Ex.OP-3 and Ex.OP-4, wherein the success rate of the IVF treatment is given 40 to 60 percent, as per version of the complainant, the complainant is illiterate lady and even her husband is not educated person and as such, they are not aware about the contents of the agreement rather their signature and thumb impression were obtained on the agreement, but this fact is not acceptable because the OP has categorically reiterated in the reply Ex.C-2 of the legal notice as well as in the reply of the main complaint that the contents of the agreement were read over and make understand to the complainant prior to start a treatment, if so then, the complainant is bound by the terms and conditions of the agreement and she has to accept that the success rate of the IVF treatment is 40 to 60 percent.

11. Apart from above, the OP has also brought on the file a copy of success rate report Ex.OP-5 of IVF, obtained from the site of eggdonationfriends.com i.e. 40 to 69 percent. So, from all angle, the complainant could not able to establish that there is any negligence on the part of the OP, rather we find from the medical treatment documents that the OP had given treatment at her best level and as per having skill and knowledge and as such, there is no deficiency in service and unfair trade practice on the part of the OP, therefore, the complaint of the complainant fails and accordingly, the same is dismissed with no order of cost. Parties will bear their own cost. The complaint could not be decided within stipulated time frame due to rush of work.

12. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Harvimal Dogra Karnail Singh

27.02.2018 Member President