Haryana

Panchkula

CC/169/2019

SURBHI SHARMA. - Complainant(s)

Versus

DR. LAL PATH LABS. - Opp.Party(s)

COMPLAINANT IN PERSON

21 Mar 2023

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA.

 

                                                       

Consumer Complaint No	:	169 of 2019
Date of Institution	:	14.03.2019
Date of Decision	:	21.03.2023

 

Surbhi Sharma, w/o Mr. Aditya Sharma, R/o H.No.766, Sector-7, Panchkula(near Govt. School Panchkula), Haryana-134109.                       

                                                                        ..….Complainant                                          Versus                                                                  

1.     Dr.Lal Path Labs, National Reference Lab, Sector-18, Block-E,    Rohini, New Delhi-110085.

2.     Dr. Lal Path Labs, A-13, PSC Panchkula Home Visit,206, Sector- 20, Panchkula, Haryana-134116.

                                                                       ……Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:              Sh. Satpal, President.

Dr. Sushma Garg, Member.

 

For the Parties:   Sh. Ajay Sharma, Advocate for the complainant.

                         Sh. Devinder Kumar, Advocate for OPs No.1 & 2.

 

                                           ORDER

 

(Satpal, President)

1.             Brief facts, as alleged in the present complaint, are that the complainant booked a Maternal Serum Screen 4 ‘Quadruple Screening Test’(hereinafter referred to as Quadruple Test) and Thyroid Stimulating Hormone(hereinafter referred to as TSH), Ultrasensitive online,  with OP no.1, by paying  in advance an amount of Rs. 3,37,000/-(Rs.3000/- for ‘Quadruple Screening  Test’ & Rs.3,370/- for TSH) through Dr. Lal Pathlabse App. Vide Ref. Order no.407120 dated 02.03.2019.. The blood sample of the complainant was collected through OP no.2 on 03.03.2019 (Sunday at 10:15 A.M) and the complainant was informed that report would be made available by Tuesday i.e. 05.03.2019. It is averred that the test report of TSH test was available on app on 04.03.2019 with the comment that the Quadruple test report would follow. It is stated that ‘Quadruple Screening Test’ is essential to detect Genetic Abnormalities before birth and that it is a time bound test to be done between 16-18 weeks of pregnancy. This is very important and critical test in course of pregnancy. On Tuesday, when no report was received, the complainant called the lab to know the status on Wednesday i.e. on 06.03.2019, whereupon she was informed that reports was under doctor’s validation and that the report would be available within 1 day. It is stated that on 08.03.2019, the complainant again called the lab(OP No.1) in the morning and she was that the test reports would be available   by the evening on the same day between 7 pm to 8 pm. On 08.03.2019, again, the complainant called at 20:30 hours and she was informed that the lab reports have get delayed as some information was to be collected from their testing centre and that they have sent a mail for the same. The report of the ‘Quadruple Screening Test’ was not received, then the complainant and her husband requested for escalating the issue with management, but the Sr. Team Leader of customer, care, Sh. Hitesh Pathak, refused to escalate the issue. However, complaint vide ref. no.CMP 19-3-8-3758 was registered. The ‘Quadruple Screening Test’ being very important and critical test, its wrong report would be very dangerous for a person. Eighteen(18) weeks were to be completed on 09.03.2019. The complainant and her husband again requested the lab persons to give her reports soon and if they had lost the Samples then they should make it clear to the complainant so that she could go for further test as sample could not be given after completion of 18 weeks of pregnancy.  It is stated that the complainant did not get her report qua ‘Quadruple Screening Test’ from the lab (OP No.2) even after repeated request and faced with such situation, she was compelled to get the report of said test from other lab. It is stated that two vials of blood samples were again given to SRL lab Chandigarh for conducting the said test i.e. ‘Quadruple Screening Test’ by paying a sum of Rs.2,880/-. It is submitted that the report from the said lab was received from the lab within time. The OP No.1 was requested to refund the amount taken by it qua Quadruple test report but request of the complainant was denied stating that the test report was under process. It is stated that the test report was not provided to the complainant despite her several requests and that the complainant was neither contacted by the OP No.1/OP No.2 nor was informed about the delay in the matter. It is stated that the test report might have got misplaced. On 11.03.2019, the complainant sent a complaint at the National Consumer Helpline App., but it was disposed of with the comment to contact the State Government as the health is a State subject.  On 11.03.2019, the complainant had written to the OPs through ‘NEED HELP’ section on their app, but did not receive any response.  On 12.03.2019 also, the complainant has sent an email on the helpline of the OP and asked for the refund of the fees deposited by her and also the compensation for mental agony and harassment. It is stated that complainant made many phone calls and wrote on the help section on OP’s app., but OP No.1 demanded the Lab no. and phone details, as if, the OP was unaware of the case. After the complainant provided them with the details once again, the OP No.1 registered another complaint vide reference complaint ID CMP 19-3-8-3862 communicated vide email on 13.03.2019 at 09:58a.m. but failed to redress her genuine grievances.  Due to the act and conduct of the OPs No.1 & 2, the complainant has suffered a great mental agony, physical harassment and financial loss; hence, the present complaint.

2.             Upon notice, the OPs No.1 & 2 appeared through counsel and filed written statement raising preliminary objections that the Commission lacks jurisdiction to entertain the complaint as the complaint does not fulfill any of the criteria for proving the deficiency of the services and thus, the compliant is not maintainable. It is submitted that, after a thorough inquiry about the brand and goodwill of the Ops in the market, the complainant approached the Ops and booked two tests namely, Maternal Serum Screen 4; Quadruple Test and TSH (Thyroid Stimulating Hormone), Ultrasensitive” through the online portal of the OP No.1 on 02.03.2019. It is submitted that the Maternal Serum Screen 4’ Quadruple Test is a blood test conducted during pregnancy to determine whether the baby is at risk for certain birth defects; This test is valid between 14-22 weeks gestation, ideally 15-20 weeks, provided that the details as mentioned by the Ops in the Order Details are correctly provided by the patient(complainant) to the trained home collection phlebotomist of the OP No.2. It is submitted that on 03.03.2019, a trained home collection phlebotomist was sent to the address of the complainant as provided by the complainant for the collection of the samples and other details specifically maternal date of birth, weight in KG, Smoking and previous  history  of Trisomy 2 pregnancy etc.  as specifically mentioned at the time of the booking of the said test, for the processing of the abovementioned tests and accordingly, the samples of the complainant were collected. It is submitted that on 04.03.2019, the interim report for the test, namely TSH(Thyroid Stimulating Hormone), Ultrasensitive, was provided to the complainant and the result for the test, namely, Maternal Serum Screen 4; Quadruple Test was to follow. On 13.03.2019 a customer care complaint was registered by the complainant bearing reference number ‘ID CMP 19-3-8-3862; and the said reference number of the complaint was communicated by the OP No.1 to the complainant vide email dated 13.03.2019 at 09:58 a.m. It is submitted that the intimation of the registration of the said complaint dated 13.03.2019 by the OP No.1 was duly conveyed to the concerned internal team of the OP No.1, whereupon due steps were taken and it was learnt that the completion of the said test was under process, and to further expedite the process, the concerned internal team of the OP No.1 verified few of the details from the complainant. It is submitted that the efforts were made repeatedly to contact the complainant telephonically between 13.03.2019 to 16.03.2019 telephonically but she refrained from reverting to any of the telephonic calls of the OP no.2. On 16.03.2019, email was sent to the complainant at 08:59am and at 12:03am asking her to provide the date of her birth and other relevant information for the purpose of conducting the test, namely, Quadruple test. On 16.03.2019 at 04:01pm, the relevant details were shared by the complainant and accordingly, the said test were conducted and report furnished on 17.03.2019. It is submitted that the report for the test, namely, Maternal Serum Screen4; Quadruple test was never challenged and the same was made available to her within 20 weeks i.e. within ideal time period for conducting the test. It is submitted that the Ops have conducted the test with due and proper care and gave a report for the same to the best of their medical knowledge and expertise in the field of pathology. It is further submitted that the report as provided by them is true and authentic as it is accredited by National Accreditation Board for testing and Calibration Laboratories(NABL), which was never challenged by the complainant. On merits, pleas and assertions made in the preliminary objections have been reiterated and it has been prayed that there is no deficiency in service on the part of the OPs No.1 & 2 and as such, the complaint of the complainant is liable to be dismissed.

3.             Rejoinder to the written statements of the OPs No.1 & 2 was filed by the complainant reiterating the contents of the complaint while controverting the contentions of the OPs.

4.             The learned counsel for the complainant has tendered affidavit as Annexure C-A along with document Annexure C-1 to C-6 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OPs No.1 & 2 has tendered affidavit Annexure R/A along with documents Annexure R-1 and closed the evidence.

5.             We have heard the learned counsels for the parties and gone through the entire record including the written arguments filed by the complainant as well as OPs no.1 & 2, minutely and carefully.

6.             During arguments, the Ld. Counsel on behalf of the Complainant has prayed for assigning the particular mark to several documents, which had already appended with the complaint at the time of institution of the present complaint. In the interest of justice the documents as prayed for are assigned the mark as Mark ‘A’, ‘B’, ‘C’, ‘D’, ‘E’ & ‘F’ for the proper adjudication of the present complaint.

7.             It is not in dispute that the blood samples of complainant were collected by OP No.2, on 03.03.2019, from her residence, for conducting the Test i.e. Thyroid Stimulating Hormone and ‘Quadruple Screening Test and Maternal Serum Screen 4 ‘Quadruple Screening Test.  It is also not in dispute that the test report of TSH and Quadruple Screening Test were sent by the OPs to the complainant on 04.03.2019 and 17.03.2019 respectively. The complainant has no grievances qua the receipt of TSH report. Further, the correctness of report pertaining to Quadruple test is also not disputed as the same has not been challenged. 8.The sole grievance of the complainant is about the non furnishing of reports of the Quadruple test to her during 16-18 weeks of her pregnancy.      The learned counsel on behalf of the complainant while reiterating the averments as made in the complaint has  contended that report of Quadruple Screening test was to be provided to the complainant within 16-18 weeks of her pregnancy, which was completing on 09.03.2019. It is contended that the Ops had acted in a gross negligent and causal manner while rendering services to the complainant. Concluding the arguments, the learned counsel has prayed for acceptance of the complaint by granting the relief a claimed for in the complaint.

9.             On the other hand, the Ops have not disputed that 18^th week of pregnancy of the complainant was completing on 09.03.2019 but they have contested the complaint stating that no deficiency, whatsoever, of in kind of any manner can be attributed qua OPs as Quadruple test is valid between 14-22 weeks of pregnancy of a woman and the ideal period is between 15-20 weeks of pregnancy. In this regard, the learned counsel on behalf of the OPs, has denied that the complainant was duly conveyed vide mark ‘A’, when order in question was booked on 02.0.2019 that the test was valid 14-22 weeks of pregnancy and the ideal period is 15-20 weeks. In this regard, the learned counsel has placed reliance upon Mark ‘A’ wherein it is mentioned as under:

          Maternal Serum Screen 4; QUADRUPLE TEST

          Test is valid between 14-22 weeks gestation (ideal 15-20 weeks). Provide maternal Date of birth(dd/mm/yy); LMP of Ultrasound, Number of Fetuses(Single/ Twins); Diabetic status and Body Weight in KG. Smoking & Previous history of Trisomy 21 pregnancy.

10.            It is contended that the complainant was duly informed about the validity period of Quadruple Test and thus, there was no occasion for her to lodge any complaint on this count. Further, the learned counsel, while reiterating the averments as made in the written statement as also in the affidavit(Annexure R-A) of Anamika Tiwari wife of Arun Tiwari has contended that  certain verification qua date of birth of the complainant was required to be made and accordingly, after seeking relevant information from the complainant the report of Quadruple test was sent to her on 17.03.2019. Further, the learned counsel contended that the correctness of the Quadruple test has not been challenged by the complainant, and thus, no harm or loss was occasioned to her. The learned counsel contended that OP’s had committed no such act, on the basis of which, medical negligence on their part can be attributed. In this regard, the learned counsel has placed reliance upon the following case laws:-

1. Kusum Sharma & Ors.Vs. Batra Hospital and Medical Research Centre & Ors.(2010)III SCC 480(Para 89).
2. Jacob Mathew Vs. State of Punjab & Anr. (2005) SCC (Cr) 1369(Para 3)
3. Bolam Vs. Friern Hospital Management Committee [1957]2 AII E.R.118
4. Poonam Verma Vs. Ashwin Patel and Ors.(1996) 4 Supreme Court Cases 332
5. Laxman Balkrishna Joshi(Dr.) Vs. Dr. Trimbak Bapu Godbole AIR 1969 SC 128: (1969) SCR 206.

                The learned counsel contended that no loss, harm or injury was occasioned to the complainant due to any act of the OPs as the correctness of report qua Quadruple test has not been disputed by the complainant. The learned counsel has placed reliance upon the following case laws:-

1. Indian Oil Corporation Vs. Messrs Loyds Steel Industries Limited; 2007(144)DLT659.
2. Sri Ravi Kant Dubey Vs. MIS K.L.Gupta & Co.  Decided on 11.10.2018(SCDRC, West Bengal)

11.            The aforementioned submissions made on behalf of the Ops that the ideal period for conducting the Quadruple test is between 15-20 weeks of pregnancy is found in direct conflict with the advice given by the doctor of Antenatal Clinic, under the Department of Obstetrics (pregnant women) of PGI, Chandigarh vide out-door patient card (Annexure C-1) wherein the complainant was advised to under-go the test of Quadruple test between 16-18 weeks of her pregnancy.

12.            The said out-door patient card (Annexure C-1) is of atmost relevance and importance to adjudicate the controversy between the parties in a just, proper and fair manner. As per above card(Annexure C-1), the complainant was checked on 19.12.2018 and was advised to undergo various test. On 19.01.2019, she was again checked and thereafter, she was checked on 23.02.2019, wherein she was advised to undergo Quadruple test between 16^th-18^th weeks of her pregnancy. Pertinently, the complainant was advised by the Antenatal Clinic under the Department of Obstetrics(pregnant women) of PGI, Chandigarh vide Annexure C-1 to undergo the said test i.e. Quadruple test, keeping her health, age, past history of the family and other related factors. In fact, the advice rendered by a qualified doctor, who has seen the physical condition of the patient and is aware about her family history, age and other aliments etc carry more weight and value over any other information derived  from any other source. Moreover, the correctness of the advice given by the doctor to the complainant to undergo the test within 16^th- 18^th week of her pregnancy vide card(Annexure C-1) is not disputed by the Ops. We find no averments in the written statement as well as affidavit(Annexure R-A) as tendered on behalf of the Ops, disputing  the correctness of advice given vide said card (Annexure C-1) qua undergoing of Quadruple test within 16^th-18^th weeks  of pregnancy.

13.            The sole defence of OPs is based on the premise that the complainant was apprised vide Mark ‘A’ at the time of booking of order in question, qua validity of the Quadruple test between 15^th-20^th weeks of pregnancy. The Op’s version is not corroborated or substantiated by any documentary evidence in the shape of medical literature on the subject. It is well settled legal proposition that mere bald assertions which are not corroborated and substantiated by any adequate, cogent and credible evidence do not carry any evidentiary value.

14.            On the other hand, the complainant’s version qua under- going  the Quadruple test within 16^th-18^th week of pregnancy is well supported  by the medical literature as obtained by her, which is placed on record, in the shape of Annexure C-2, C-3 & C-4, from the website of American Pregnancy Association, India Today and Medline Plus respectively. As per above said Annexure C-2 to Annexure C-4, the Quadruple test is performed between the 16^th-18^th week of pregnancy. As per article availed by the complainant from the website of Medline Plus(Annexure C-4), it is mentioned that the test is most often done between 15^th-22^th weeks of pregnancy but it is most accurate between  16^th-18^th weeks of pregnancy. In view of the aforementioned facts, the OP’s version has no leg to stand and thus, the same is not acceptable to the Commission.

15.            Further, the reason for the delay in providing the Quadruple test report to the complainant has been stated that the verification of date of birth of the complainant was required to be made prior to the conducting of the Quadruple test. This explanation is totally incorrect, erroneous and baseless as the date of birth of the complainant was provided to Ops vide Mark ‘B’, while booking the order vide Mark ‘A’ on 02.03.2019. Moreover, the Ops could obtain the information qua date of birth of the complainant, while sending the report of TSH on 04.03.2019, wherein the complainant was assured that the report qua Quadruple test would follow the TSH report.

16.            As per unrebutted contentions of the complainant, the Ops were contacted on 06.03.2019 and 08.03.2019 between 7:00PM to 8:00PM and again at 10:30PM. There is no rebuttal qua the averments made in para no.9 of the complaint that Sh.Hitesh Pathak, Sr. Team Leader of Customer Care was requested to escalate the issue with the Management. Further, there is no rebuttal qua the registration of the complaint bearing no.CMP 19-3-8-3758. In fact, the complainant was continuously pursuing the OPs qua the result of said Quadruple test but the Ops had slept over the matter and failed to conduct the test between 16-18 weeks of pregnancy of the complainant. The OPs have been found to have come into action only after the lodging of second complaint bearing no.CMP-19-3- 3862 on 13.03.2019 at 9:58 am.

17.            Furthermore, it is pertinent to mention here that another lab, namely, SRL Diagnostic had given its report qua Quadruple test on the 4^th day i.e. on 12.03.2019 from the drawing of the blood samples of the complainant on 09.03.2019 whereas the Ops had provided the report of same test i.e. Quadruple test on 15^th day i.e. on 17.03.2019, from taking the blood samples on 03.03.2019. The aforesaid discussion leads us to the irresistible conclusion that the OPs had acted in a gross causal and negligent and deficient manner while rendering services to the complainant, hence, she is entitled to relief.

18.            Coming to the relief, it is found that a sum of Rs.4,05,880/- has been claimed by the complainant under the following heads:-

1. Rs.4,00,000/- on account of physical and mental agony
2. Rs.3,000/- as paid to Ops qua Quadruple Screening Test
3. Rs.2,080/- as paid to SRL Lab 19.In addition to above, a sum of Rs.20,000/- has been claimed as litigation charges. The Ops have opposed the relief as claimed by the complainant on the ground that the complainant has never suffered any harm, loss and injury due to any act of the OPs. The contentions of the Ops in this regard are not tenable as discussed in earlier para of this order. 20.   Pertinently, the complainant was advised to under-go the Quadruple test in order to detect any abnormalities in the baby/child and thus, and her anxiety to know the results of said test had a valid and justified reasons. The Ops, by not providing the said test report on or before 9^th of March 2019 had put the complainant under great mental stress. Therefore, she is justified to the entitlement of reasonable, fair and adequate compensation of account of mental agony and harassment suffered by her. 21. As a sequel to above discussion, we partly allow the present complaint with the following directions(jointly and severally) to the OPs No.1 & 2:-

1. To refund a sum of Rs.3,000/- to the complainant as paid by her on account of Quadruple Screening Test  along with interest @ 9%(s.i) per annum w.e.f. the date of filing of the present complaint till actual realization.
2. To pay an amount of Rs.15,000/- to the complainant on account of mental agony and harassment suffered by her.
3. To pay an amount of Rs.5,500/- as cost of litigation charges. 22.  The OPs No.1 & 2 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, 2019 against the OPs No.1 & 2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on:21.03.2023

 

 

 

              Dr.Sushma Garg                       Satpal

                  Member                             President

 

Note: Each and every page of this order has been duly signed by me.

 

                                             Satpal

                                            President

CC No. 169 of 2019

 

Present:             Sh. Ajay Sharma, Advocate for the complainant.

                        Sh. Devinder Kumar, Advocate for OPs No.1 & 2.

 

Arguments heard. Now, to come upon 16.03.2023 for orders.

 

Dated: 13.03.2023

 

 

 

Dr.Sushma Garg          Dr. Pawan Kumar Saini         Satpal          

         Member                          Member                               President

 

 

Present:             Sh. Ajay Sharma, Advocate for the complainant.

                         Sh. Devinder Kumar, Advocate for OPs No.1 & 2.

 

                                The case is fixed for orders. However, the final order could not be reduced into writing due to non availability of the steno/ stenographer as she is on leave. Now, to come upon 21.03.2023 for orders.

Dt.16.03.2023

 

 

        Dr.Sushma Garg          Dr. Pawan Kumar Saini           Satpal

              Member                  Member                           President