Complaint filed on: 13-04-2012
Disposed on: 15-02-2013
BEFORE THE BANGALORE IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052
C.C.No.790/2012
DATED THIS THE 15th FEBRUARY 2013
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.A.MUNIYAPPA, MEMBER
Complainant: -
Shamil.K. S/o Late C.K.Govindan,
Aged about 27 years,
R/at No.37, Ansurya Nilaya,
Dwarakanagar, 2nd Cross,
IAF Yelahanka, Bangalroe-63
V/s
Opposite party: -
Dr.Venkataram Mysore,
Dr.Venkat Charmalaya,
No.3427, 1st G Cross,
7th Main, Next to BTS Garage,
Subbanna Garden,
Vijayanagar, Bangalore-40
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainant against the OP, under section 12 of the Consumer Protection Act, praying to pass an order, directing the OP to refund Rs.3.00 lakhs towards compensation, loss of time, harassment and loss of salary alongwith interest.
2. The brief facts of the complaint can be stated as under.
The complainant had gone to Dr.Venkat Charmalaya Hospital, Vijayanagar, Bangalore for hair transplant on 01-11-2010, and the concerned doctor of the OP had suggested to undergo hair transplant surgery, and accordingly the OP had conducted his hair transplant surgery on 7-1-2011. The doctor insisted on having medicines, which he had rejected before surgery itself. The medicines are used to stop falling of the remaining hair, but the hair transplant surgery was not done properly leaving with strange hairline. The hair line was not set properly and doctor did not listen to the request made by him. On complaints, the doctor conducted another hair transplant surgery free of cost on 5-12-2011. Even this time, the surgery was not done properly which clearly indicates the lack of skill. Hair transplant surgery needs to be done by the expert. The OP used low quality thread for stitching the donor area of hair follicles, which resulted in bleeding and severe pain. The OP insisted not to collect bill for the surgery, so both the parties could save tax, but the complainant insisted on paying the tax and collecting the bill. The OP said the complainant must take medicine compulsorily for stopping the further hair fall of remaining hair. The complainant refused to take profecia due to its side effects. The complainants used all other medicines suggested by the doctor, if taking medicine only could grow hair then there was no need to undergo hair transplantation surgery. The doctors do not specify the side effects of the medicine to the clients. The OP transplanted hair here and there making the look worse. The complainant visited the doctor several times regarding the said hair transplantation, but the said OP has not taken any interest and did not help the complainant, and the complainant had incurred huge amount of Rs.2,00,000=00, so the complainant had to suffer great mental agony and harassment for all 1 year and 4 months. So the complainant prays to direct the OP to refund entire amount of Rs.3.00 lakhs of Hair Transplantation including compensation, loss of time, harassment, loss of salary alongwith interest and cost. Hence, the present complaint is filed.
3. After service of the notice, the OP has appeared through its counsel and filed objection, contending interalia as under:
The complaint of the complainant is not maintainable either in law or on facts, and it is liable to be dismissed in limine. The OP is a certified medical practitioner having a post graduate degree in Dermatology and 25 years of experiences in that specialty. He has worked as a dermatologist in many reputed hospitals in India and Abroad, and he is a member of International society of Hair Restoration society, Royal College of UK and American Academy of Dermatology. He has conducted and published over 100 research papers and he is one of the pioneering hair transplant surgeon in India and he has presented over thirty research papers, conducted workshop, delivered lectures on the subject of hair transplantation alone. The OP hospital is recognized by Rajeev Gandhi university of Health Sciences for advanced training in Dermatology. The OP has published booklets in Kannada and English to create awareness on skin and hair protection among general public. The allegation that the OP has suggested the complainant to undergo hair transplant and advised surgery are denied as false and the complainant is put to strict proof of the same. On the contrary, it was the complainant who came to the hospital of the OP and inspite of being advised that his condition of baldness could be treated by drugs he opted for the hair transplant. The complainant was given proper consultation by the OP and the OP had also given him the brochure on cause of hair loss and drugs for hair restoration, method of hair transplantation, booking procedures. After the procedure, the complainant in the patient feed back form has rated the services rendered by the OP as excellent and did not have any suggestions to improve the service. The consent form signed by the complainant on 1-11-2010 and 7-1-2011 and the patient feed back form are produced. After the complainant consented to the same by signing a consent form for hair transplant dated 30-11-2011 and has also consented for follicular unit extraction. While performing the surgery the OP had used standard quality threat for suturing the wound. The sutured area of the complainant healed well and what the complainant has stated in his complaint is the usual course of wound healing after any surgery. The OP had specifically advised the complainant that baldness is a condition which cannot be treated only with hair transplant alone, that it had to be followed up with medication, but the complainant inspite of being advised to use medications to stop further baldness in areas where no hair grafting had been done, for the reasons best known to him refused to use the drugs prescribed for him by the OP. The complainant in the consent form for hair transplantation has stated the same and has accepted to take responsibility for the same. The OP is a highly responsible professional and is always receptive to his patients. The complainant’s reluctance and refusal to take drugs to treat the progressive baldness made matters worse for him and inspite of being advised, the complainant did not comply with the medical advice of the OP. The allegations of the complainant that, the OP has insisted on the complainant not to collect the bill for surgery so that both parties can save tax is denied as false. The fact is that, the complainant refused to pay the service tax which has been recently levied by Government of India on all cosmetic surgeries, what the complainant has paid is the service charges for the credit card payment and not service tax payable to the government. Despite this the bills were issued and the OP has remitted the applicable service tax on the bills of the complainant. When a patient undergoes surgery in a hospital, the hospital authority has to maintain records. Therefore there is no scope for not issuing a bill to the person undergoing hair transplant surgery. The complainant had been advised that baldness is a progressive condition and that drugs are needed to preserve existing hairs for baldness and that the balding may continue even after surgery, the complainant had been given in detail all the information and explained the necessity of post operative follow up and treatment. The photographs of the complainant before and after the grafts which show satisfactory results after the transplantation, the complainant’s look is affected due to progression of baldness due to natural causes and not adhering to instructions of the OP for drug therapy to prevent such progression and is not related to surgery in any way. The complainant who has not adhered to the professional advice of the OP has come up with the false and vexatious complaint only with the sole motive of harassing the OP. The OP had explained the consequences lucidly to him and obtained informed consent from him before subjecting him to surgery. The complainant has signed the consent forms after having understood the contents of the same and he cannot fall back now making false and frivolous allegations. The complainant has filed the complaint with ulterior motives without there being any deficiency in service or any negligence on the part of the OP. The complainant has not made out any case against the OP and no material has been placed on record to prove the frivolous allegations made against the OP. There is no cause of action for filling the present complaint. The present complaint does not fulfill the bolam test laid down by the Apex court in Jacob Mathew cases (2005) 6 SCC 1 and in Martin F D’Souza Vs. Mohd. Ishafaq (2009) 3 SCC 1 in dealing with cases were medical negligence is alleged. The complainant has not produced any documents in support of his complaint alleging medical negligence as against the OP. In the absence of any medical report or an expert opinion of any other competent medical professional to prove this allegation, hence this complaint is liable to be dismissed with exemplary cost in the ends of justice and equity.
4. So from the averments of the complaint of complainant and objection of the OP, the following points arise for our consideration.
1. Whether the complainant proves that, OP has not done hair transplant properly, and due to that his look has become worsen and there is negligence and deficiency of service on the part of the OP?
2. If point no.1 is answered in the affirmative, what relief, the complainant is entitled to?
3. What order?
5. Our findings on the above points are;
Point no.1: In the Negative
Point no.2: In view of the negative findings on the
Point no.1, the complainant is not entitled
to any relief as prayed in the complaint
Point no.3: For the following order
REASONS
6. So as to prove the case, the complainant has filed his affidavit by way of evidence and produced 12 copies of documents alongwith the complaint, and produced three copies of documents. On the other hand, one Dr.Venkataram who being the OP has filed his affidavit and produced 12 documents with list dated 27-6-2012 and 36 documents alongwith list dated 18-8-2012 and six photos. We have heard the arguments of both sites, and we have gone through the oral and documentary evidence of both parties meticulously.
7. One Shamil.K, who being the complainant has stated in his affidavit that, he had gone to Dr.Venkat Charmalaya Hospital, Vijayanagar, Bangalore of OP hospital for hair transplant on 01-11-2010, and the concerned doctor of the OP had suggested undergoing hair transplant surgery, and accordingly the OP had conducted hair transplant surgery on 7-1-2011 and insisted on having medicines, which he had rejected before surgery itself. The medicines are used to stop falling of the remaining hair, but the hair transplant surgery was not done properly leaving him with strange hairline. The hair line was not set properly and doctor did not listen to his request. On his complaints, the doctor conducted another hair transplant surgery on 5-12-2011, and even this time, also the surgery was not done properly. Hair transplant surgery needs to be done by the expert. The OP used low quality thread for stitching the donor area of hair follicles, which resulted in bleeding and severe pain, and the OP insisted not to collect bill for the surgery, so both the parties should save tax, but he insisted on paying the tax and collecting the bill. The OP said he must take medicine compulsorily for stopping further hair fall of remaining hair, and he refused to take profecia tablets due to its side effects. The doctors do not specify the side effects of the medicine to the clients. The OP transplanted hair here and there making the look worse, and he visited the doctor several times regarding the said hair transplantation, but the said OP has not taken any interest and did not help him, and he has incurred huge amount of Rs.2,00,000=00, and he had to suffer great mental agony and harassment for all 1 year and 4 months. So, he prays to direct the OP to refund an amount of Rs.3.00 lakhs of Hair Transplantation including compensation, loss of time, harassment, loss of salary alongwith interest and cost.
8. So looking to the averments of complaint and evidence of complainant as mentioned above, it is made explicitly clear that, the complainant has tendered his evidence in conformity with the averments of complaint. Let us have a look at the relevant documents of complainant, so as to know whether the oral testimony of complainant is supported by documentary evidence or not. Document no.1 of the complainant is the copy of prescription chit dated 1-11-2010 in the name of the complainant. Document no.2 is the copy of investigation report of Mallige Diagnostic Laboratory dated 1-11-2011 in respect of complainant and complainant has been referred to the said laboratory by OP, and the said report does not show any abnormality in the health of complainant. Document no.3 is the copy of discharge summary of complainant issued by OP dated 7-1-2011 and that document discloses that, Follicular unit hair transplantation was done by OP, and OP prescribed some medicine to complainant for five days, and there is mention made in the said document that, the complainant is not willing to take tablets Finax 1mg. Document no.4 is the copy of discharge summary issued by OP dated 5-12-2011, wherein it is stated that, the OP did hair grafts follicular unit extraction and advised to take some of medicine to complainant. Document no.5 is the copy of order sheet of Hair Max for having purchased Laser Comb. Document no.6 is the copies of two emails correspondences between the complainant and OP, and in the email letters of complainant, it is stated that, the hairline is not proper on both sides, it is not rectified evenafter the second hair transplant procedure, hair transplant did not give proper result and there is a huge gap and it looks odd and last email sent by complainant to OP dated 27-3-2012, but as per the email of OP, it is transpired that, the complainant did not take some of medicine as per advice of OP. The complainant has produced five receipts issued by OP for having paid total an amount of Rs.67,620=00 to OP towards consultation of Hair transplant. The complainant has produced one letter dated 6-11-2012 given by one Dr.Dinesh, Hairline Health Care Pvt. Ltd, wherein the rates of Hair transplant of Hairline health care Pvt. Ltd were mentioned and at the right side of the said document, the complainant himself wrote a remark stating that, another doctor stating that, the hairline needs to be corrected, and not by doctor working in the said company. Since, the remark mentioned in the said document is not by doctor of Hairline health care Pvt. Ltd, so the said document produced by complainant cannot be relied upon. The complainant has produced one document dated 12-10-2011 issued by OP to show that, the complainant has attended sessions for hair transplant from 12-10-2011 to 30-11-2011 i.e. 15 sessions attended.
9. At this stage, it is relevant to have a cursory glance at the oral and relevant documents of OP. One Dr.Venkataram who being the OP has stated in his affidavit that, he is a certified medical practitioner having a post graduate degree in Dermatology and 25 years of experience in that specialty and worked as a Dermatologist in many reputed hospitals in India and Abroad and is a member of International society of hair restoration society, Royal college of UK and American Academy of Dermatology, and he is having an experience of 12 years in hair transplant and cosmetic surgery. The complainant came to their hospital on the complaint of baldness for 10 years, and he himself opted for the hair transplantation by signing the consent form, and the surgery was conducted properly. While performing the surgery, he has used standard quality thread for suturing the wound. The allegation made by complainant against him is totally false and baseless, the complainant’s reluctance and refusal to use drugs to treat the progressive baldness made matters worse for him and inspite of being advised the complainant did not comply with his medical advice. The complainant has not adhered to his professional advice and has come up with this false and vexatious complaint with the sole intention of harassing him and there is no negligence or deficiency of service on his part in doing surgery, so the complaint be dismissed. The OP has produced copies of certificates to show his qualification and these documents go to reveal that, the OP is qualified doctor practicing in Dermatology and he is a member of UK and USA in the field of Dermatology, and the OP has also produced document no.7 to 12 alongwith list dated 27-6-2012. Document no.7 of list dated 27-6-2012 is consent form for hair transplant dated 7-1-2011 and it is signed by complainant and OP, and feed back form has also been filed by OP and signed by complainant and that document is document no.8. Document no.9 is another consent form signed by both parties dated 30-11-2011 and at clause 9 of the said document, it is clearly stated that , he is (the complainant) aware that, the process of baldness may continue evenafter the surgery in other areas of the scalp, and this will need treatment with drugs for prolonged for a period of time. Document no.11 is the copy of consent form for Hair transplantation dated 30-11-2011 signed by complainant stating that, he has been advised unless drugs are taken regularly and for several years baldness may progress in other area, he does not wish to take drugs and accept responsibility for this. Document no.12 consists of two photos of complainant’s head, and first photo shows no forehead portion on both sides, there is a gap visible, and in the second photo shows that hair transplantation was done by OP, on gap portion of both sides of forehead. Taking the oral and documentary evidence of complainant and compare the same with the material evidence of OP, it is made unambiguously clear that, the OP has conducted hair transplantation surgery of complainant two times as chosen by complainant and before doing the surgery, the complainant has signed consent form duly and has under taken the full guideline of OP strictly, but subsequently the complainant did not take medicine properly as per advice of OP and the complainant has declared by writing in consent form that, he does not take drugs and accept responsibility for not taking drugs. So allegations of complainant both in the complaint and during the course of evidence of complainant that, the OP did not advice regarding drugs and its side effect cannot be taken into consideration as gospel truth in view of declaration of complainant for not taking drugs as prescribed by OP. That apart the complainant has not stated specifically either in the complaint or in his evidence that, the OP is negligent and there is deficiency of service on the part of the OP in doing hair transplant surgery. The whole complaint and evidence of complainant are ominous silent on this vital aspect. Except stating the orally by complainant that, OP has not done hair transplantation surgery properly, no believable documentary evidence is produced by complainant. In the absence of producing convincing material evidence, it is superfluous to reiterate on the solitary testimony of complainant that, the OP has not done hair transplantation surgery properly. The oral evidence of complainant that the OP has not done hair transplantation surgery properly and there is negligence and deficiency of service on the part of the OP is not countenanced by clear cogent and consistent documentary evidence. On the other hand, the OP has shown with material evidence that the OP is a reputed qualified surgeon of Dermatology and he has taken care and caution while doing hair transplantation surgery of complainant and adviced the complainant to take medicine properly, but unfortunately, the complainant did not act as per advice of OP. The conduct of complainant in not taking medicine prescribed by OP shows negligence of complainant himself and for negligence or carelessness of complainant, the OP cannot be blamed for dereliction of duty as a doctor. So looking at the material evidence of both parties with more care and precision, we are of the considered opinion that, the oral and documentary evidence of OP are more believable trustworthy and acted upon than the material evidence of complainant. The complainant who comes to forum seeking relief on the ground of medical negligence has miserably failed to prove the medical negligence of OP by placing convincing evidence, and accordingly, we answer this point in a negative.
10. In view of our negative finding on the point no.1, the complainant is not entitled to any relief as prayed in the complaint. So, we answer this point in a negative. In the result, for the foregoing reasons, we proceed to pass the following order.
ORDER
The complaint of the complainant is hereby dismissed. So, under the circumstance, both parties shall bear their own cost.
Supply free copy of this order to both parties.
Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this the 15th day of February 2013.
MEMBER PRESIDENT
