Punjab

Ludhiana

CC/19/565

Pawan Sood - Complainant(s)

Versus

Dr.Anurag Bansal - Opp.Party(s)

Complainant in person

15 Mar 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:  565 dated 11.12.2019.                                                       Date of decision: 15.03.2024. 

 

Pawan Sood son of Late Shri Ram Lal Sood, R/o. 95, Tagore Nagar-A, Civil Lines, Ludhiana-141001. Mobile No.98784-05816.                                                                                                                                ..…Complainant

                                                Versus

1. Dr. Anurag Bansal, Anurag Eye Centre, Opposite Kali Mata Mandir, Chhoti Haibowal, Hambran Road, Ludhiana-141001.   
2. The Oriental insurance Company Limited, CBO 4, 134/135, Sahu Plaza, Alam Bagh Lucknow, Uttar Pardesh.
3. Dockland Services Private Limited, 2^nd Floor, Shriram Market above United India Insurance Company Limited, 33 Cantonment Road, Lucknow-226001.
4. New India Assurance Co. Ltd., having its Regional Office at 108, The Mall, Surya Tower, 4^th Floor, Mall Road, Ludhiana.                                                                                                         …..Opposite parties 

Complaint Under Section 12 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Pawan Sood in person.

For OP1                         :         Sh. A.K. Jindal, Advocate.

For OP2 and OP4          :         Sh. Rajan Kumar Chand, Advocate.

For OP3                         :         Sh. Vivek Gupta, Advocate.

 

 

 

ORDER

PER SANJEEV BATRA, PRESIDENT

 

1.                Shorn of unnecessary details, the facts of the case are that the complainant, a Senior Citizen of 69 years, visited the OP on 22.09.2019 for check of his left eye and deposited fee of Rs.500/- vide receipt No.29270. The OP advised the complainant for operation and told that he will charge Rs.19,000/- for eye operation from the complainant. The OP also assured to give facility of blood checking, medicines and will provide lens number after operation and medical checkup to which the complainant agreed. On 24.09.2019, the complainant visited the OP for blood checking and on asking of staff deposited Rs.800/- though the blood checking expenses were included in amount of Rs.19,000/- as per the OP. According to the complainant, he was forced to deposit Rs.800/- as blood sample checking fees vide receipt No.852 dated 24.09.2019. The OP also received Rs.500/- vide receipt no.29288 dated 24.09.2019 as eye checking fee and the complainant was given date of eye operation. On 27.09.2019, the complainant deposited Rs.19,000/- vide receipt No.29230 and operation of his left eye was done and he was asked to come after two days for removal of bandage, which was removed. The complainant stated that on 27.10.2019, he visited the clinic of the OP for checking of his left eye and for giving lens number where he was forced to deposit Rs.500/- as OPD charges by the staff to visit the doctor whereas the complainant was to pay Rs.19,000/- for operation including everything. However, the complainant was not allowed to visit the doctor until he deposits Rs.500/-. The complainant requested and apprised them all things by showing papers and receipts but he was refused to visit the doctor and was insulted badly. The complainant further stated that he came back and got checked his eye and took lens number from some other doctor. The complainant claimed to have suffered economic loss as well as mental tension and agony at the hands of the OP for which he is entitled to compensation of Rs.2,50,000/- due to deficiency in service on the part of the OP. In the end the complainant has prayed for issuing directions to the OP to pay compensation of Rs.2,50,000/- and t refund the amount of Rs.19,000/- besides litigation expenses.

2.                Upon notice, OP1 appeared and filed written statement and assailed the complaint by taking preliminary objections on the ground of  maintainability; suppression of material facts; the complaint has been filed to extract money from the OP; non joinder of necessary party etc. OP1 averred that the complainant visited him on 22.09.2019 where he was examined and advised to undergo lab investigation for blood test. The complainant visited S.K. Diagnostic Lab where his various tests were done on payment of Rs.800/-. According to OP1, he does not operate or manage any diagnostic lab for conducting such tests. However, on 24.09.2019, the complainant visited OP1 for which he was charged Rs.500/- as consultation charges against proper receipt. On the basis of investigation of  lab tests the complainant was advised to take medicines for lowing sugar level and drops were prescribed o him having costs of Rs.434/- from Anu Medicare. After the sugar level of complainant became normal, he was operated on 27.09.2019 on charges of Rs.19,000/- vide bill No.705 dated 27.09.2019. The complainant was prescribed medicines along with paper tape, cotton role etc. which he purchased from Anu Medicare. The complainant visited the clinic of OP1 on 28.092019 and 04.10.2019 for post operative checkup for which he was not charged any fee but the complainant has suppressed this fact. Medicines prior to operation and post operation period are to be purchased by the patient from his pocked and not by the doctor. Moreover every medical practitioner charges fees according to his own experience, expertise and stature. No hard and fast rules have been fixed by any local or other government authorities in this regard. OP1 further stated that it has not done any deficiency in service as alleged. According to OP1, he has been insured with Oriental Insurance Company Limited  and Docland Services Pvt. Ltd.

                   On merits, OP1 reiterated the crux of averments made in the preliminary objections and facts of the case. OP1 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.      

                   Along with written statement OP1 filed an application for impleading Oriental Insurance Company Limited  and Docland Services Pvt. Ltd. as party to which the complainant suffered statement not to file reply and prayed for dismiss the application.  Vide order dated 27.08.2021, Oriental Insurance Company Limited  and Docland Services Pvt. Ltd were ordered to implead as OP2 and OP3.

3.                Upon notice, OP2 appeared and filed and written statement by taking preliminary objections assailed the complaint on the ground of maintainability; lack of jurisdiction; mis-joinder and non-joinder of necessary parties; the complainant being estopped by his own act and conduct from filing the complaint. OP2 averred that there is no privity of contract between it and the complainant.

                    On merits, OP2 reiterated the crux of averments made in the preliminary objections and facts of the case. OP2 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.      

4.                OP3 filed separate written statement and assailed the complaint by taking preliminary objections on the ground of maintainability; lack of locus standi; lack of jurisdiction; concealment of material facts; lack of cause of action etc. OP3 stated that it is not a necessary party to the present complaint. Further OP1 is fully qualified and experienced doctor to give said treatment and OP2 is the insurer of OP1 and OP3 is only the “Insurance Corporate Agent” who advised OP1 to get insurance policy from OP2.  As such, no liability could be levied on OP3.

                   On merits, OP3 reiterated the crux of averments made in the preliminary objections and facts of the case. OP3 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

5.                Further during the course of proceedings, OP2 filed application for impleading The New India Assurance Co. Ltd. as OP4, which was allowed vide order dated 13.12.2022.

                   Upon notice, OP4 appeared and filed written statement and by taking preliminary objections assailed the complaint on the ground of maintainability; lack of jurisdiction; mis-joinder and non-joinder of necessary parties; the complainant being estopped by his own act and conduct from filing the complaint. OP4 averred that there is no privity of contract between it and the complainant.

                    On merits, OP4 reiterated the crux of averments made in the preliminary objections and facts of the case. OP4 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

6.                The complainant filed replication to the written statement of OP3 reiterating the facts mentioned in the complaint and controverted those mentioned in the written statement of OP3.

7.                In evidence, the complainant tendered his affidavit as Ex. CA and reiterated his averments of the complaint. The complainant also placed on Ex. C1 copy of treatment card of Anurag Eye Centre, Ex. C2 is the copy of prescription slip dated 22.09.2019, Ex. C3 is the copy of receipt dated 24.09.2019 of Rs.800/- of S.K. Diagnostic, Ex. C4 and Ex. C5 are the copies of laboratory reports of AmPath Central Reference Laboratory,  Ex. C6 is the copy of receipt of Rs.500/-issued by Anurag Eye Centre, Ex. C7 is the copy of receipt of Rs.19,000/- issued by Anurag Eye Centre, Ex. C8 is the copy of receipt of Rs.434/- of Anu Medicare, Ex. C9 is the copy of bill No.705 dated 27.09.2019 of Anurag Eye Centre, Ex. C10 is the copy of discharge summary dated 27.09.2019, Ex. C11 is the copy of eyes test report of the complainant, Ex. C12 is the copy of receipt of Rs.578.70 issued by Anu Medicare, Ex. C13 is the copy of certificate issued by Dr. Anurag Bansal, Ex. C14 is the copy of cash memo dated 27.09.2019 of Rs.80/- issued by Anu Medicare, Ex. C15 is the copy of OPD slip as well as Ex. C16 is the copy of eye test report dated 22.11.2019 of Sharman Shri Phool Chand Jain Eye Medical Centre  and closed the evidence.

8.                OP1 failed to adduce any evidence despite grant of sufficient chances including last and final chance and imposition of costs of Rs.500/-. As such, evidence of OP1 was closed by order vide order dated 25.01.2024. However, along with the written statement, OP1 presented documents which are marked as Ex. RW1/1 to Ex. RW1/17.

                   The learned counsel for OP2 and OP4 closed the evidence without tendering any affidavit and documents.

                   However, the learned counsel for OP3 tendered affidavit Ex. RA-3 of Dr. Tanmay Dey, Director of OP3 along with document Ex. RD3/XY is copy of resolution and closed the evidence.

9.                We have heard the arguments of the counsel for the parties and also gone through the complaint, replication, affidavit and annexed documents and written statements along with affidavits and documents produced on record by the parties.

10.              Admittedly, on 22.09.2019, the complainant consulted OP1 after paying a consultation fees of Rs.500/- vide receipt Ex. C1 who was advised for cataract surgery of left eye. The complainant was further advised to undergo Pre-operative screen tests on 24.09.2019 for which an amount of Rs.800/- was charged by S.K. Diagnostic Lab vide receipt Ex. C3. On the same day, he also paid consultation fee of Rs.500/- to OP1 vide receipt Ex. C6. On 27.09.2019, the left eye cataract surgery of the complainant was performed by OP1 after charging Rs.19,000/- vide receipt ex. C7. The complainant was advised to visit on next day for follow up as evident from discharge summary Ex. C10. Further perusal of Ex. RW1/10 the treatment and progress notes of the complainant shows that he visited on 28.09.2019 for follow up and again on 04.10.2019 for postoperative follow up and care. OP1 has specifically mentioned in his written statement that no consultation fee or fee for medical examination on those days waere charged. The complainant could not deny this fact during the course of arguments. The only grievance that remains that when on 27.10.2019, the complainant went for checking of his eyes, the staff of OP1 demanded consultation charges of Rs.500/- from him. The complainant claims that the consultation was part of the package and was no chargeable. The complainant has not adduced any document which could show that all the post operative visits were included in the package. Perusal of final bill Ex. C9 also enlists the charges under various heads which were chargeable on the date of operation itself. It is not the case of the complainant that he had paid an amount of Rs.500/-. It was mere a demand which was raised by the staff of OP1 which annoyed the complainant and he left the clinic of OP1 without examining his eyes. There is nothing on record to conclude that OP1 has rendered any deficient services or adopted an unfair trade practice in charging fees for cataract surgery from the complainant. The initial burden of proving deficiency in service on the part of the opposite party was upon the complainant which he has failed to discharge by way of any cogent and convincing evidence.

11.              In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon'ble Supreme Court of India whereby it has been held as under:-

19. The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon'ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. "6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent." 20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

"28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service."

In the given facts and circumstances, the complainant has failed to prove the deficiency in service on the part of the opposite parties by any cogent and convincing evidence.

12.              As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

13.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

 

(Monika Bhagat)                              (Sanjeev Batra)               Member                                         President

         

Announced in Open Commission.

Dated:15.03.2024.

Gobind Ram.