PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
That the Opposite Party is a Homeopathy Doctor’s Clinic having its registered office at 2nd Floor, H. Kantilal Compound, Andheri-Kurla Road, Sakinaka, Andheri (E), Mumbai – 400 072 and a clinic at 1-A, Kakad House, 1st Floor, Opposite Liberty Cinema, Marine Lines, Mumbai – 2. The Complainant was suffering from ailment of cold so she approached Opposite Parties clinic on 10/10/06 and filled a form bearing registration no.026556 and paid Rs.250/- as an consultation fees and Rs.5,960/- as fees for one year treatment.
2) It is alleged by the Complainant that she did not get relief from the treatment started by Dr.Swaty Raman of Opposite Party Clinic. Opposite Party used to give medicines for one month and appointment for next treatment but she could no get relief. In the month of May, Opposite Party declared a scheme for existing patient that if you pay the fees for the second year treatment then you have to pay only Rs.6,000/- and in case of payment after 30th May, 07, the existing patient will have to pay more than Rs.7,200/-. Attracted by the aforesaid scheme, the Complainant paid fees for second year on 26th May, 07.
3) It is alleged by the Complainant that she took further treatment after May, 2007 but there was no relief. On 12th July, 07 Dr. Swati Raman advised Complainant test of her CBC. The Complainant did the test from Om Diagnostic Centre on 13/07/07. Even thereafter, the Complainant could not get relief from Homeopathic treatment so she had to take allopathic medicines. The Complainant told, Dr. Swati Raman that she did not wish to continue the second year treatment even though she had paid fees for second year treatment. That time Dr. Swati Raman advised Complainant to visit Sr. Doctor V.P. Shah. The Complainant met Dr.Shah who prescribed medicines to the Complainant for two months. But still there was no relief. On 1st October, 07 the Complainant was advised to test IgE level. Accordingly, the Complainant get the test done at Om Diagnostic Centre. As Complainant was not getting relief, the Complainant told Dr. Shah that she is going to discontinue her treatment for next year and asked to refund money paid for next year treatment. Dr. Shah told the Complainant she will have to take treatment and she will not get refund of the fees. The Complainant’s first year’s treatment was to end on 10/10/07 so she stopped visiting Opposite Party’s clinic after that date. She sent letter to Dr. Akshay Batra and requested to refund her money but there was no response. She sent email to the Consumer Forum but there was also no response from the Consumer Forum. The Complainant sent reminders to Dr. Akshay Batra but could not get response. The Complainant was also suffering from other problems and had to take lot of medicines. The Complainant was also suffering from jaundice. The Complainant took treatment from local physician and latter on took treatment from G.T. Hospital. As Opposite Party refused to refund her fees paid in advance, the Complainant has filed this complaint.
4) The Complainant has requested to direct Opposite Party to pay to the Complainant an amount of Rs.6,000/- together with interest @ 15 % p.a. on Rs.6,000/- from 01/06/07 till realization of the entire amount. The Complainant has claimed compensation of Rs.50,000/- for mental agony and physical harassment from the Opposite Party and also cost of this proceedings.
5) Alongwith complaint, the Complainant has filed 20 xerox copies of the documents including copies of Registration Form, receipt of fees paid to the Opposite Party, receipt of amount paid in advance towards next years treatment and reports of diagnostic centre.
6)Opposite Party has filed written statement and thereby resisted claim of the Complainant contending interalia that complaint has been filed on the ground non-refund of her fees, without making allegations of deficiency in service or of medical negligence against Opposite Party therefore, complaint is liable to be dismissed. Further complaint is bad for misjoinder of parties. It is alleged that Complainant has suppressed material facts from this Forum with a selfish motive and on this ground also complaint is liable to be dismissed.
7) According to the Opposite Party, case history of the Complainant shows that there was remarkable improvement in condition of complaint after availing treatment from the Opposite Party. Opposite Party has annexed history of the Complainant alongwith written statement at annexure R1. They have denied allegations that the Complainant did not get any relief from the treatment of Opposite Party. It is contended that if the Complainant had not got any relief from the treatment then she would not have paid fees for next year treatment. Therefore, Complainant’s allegations that she did not get relief from the treatment of Opposite Party cannot be relied upon.
8) According to he Opposite Parties, the only grievance of the Complainant about the non refund of fees paid in advance to the Opposite Party for which the Complainant has not taken treatment. The Opposite Party has produced copy of the registration form dtd.10/10/06 submitting that declaration appearing in the registration form has been duly singed by the Complainant which specifically states that the charges paid for the treatment are not refundable. The Complainant on her own account opted for renewal and paid charges. Therefore, she is not entitled to claim refund of charges paid by her. The Opposite Parties have denied allegations made in the complaint and submitted that complaint deserves to be dismissed with cost. Alongwith written statement Opposite Parties have produced history of the Complainant, affidavit of Dr. Swati Raman, etc.
9) The Complainant has filed written argument. Opposite Party has also filed written argument. Heard oral submissions of the Complainant and Ld.Advocate Mr. Ravindra Tandekar for the Opposite Party.
10) Following points arise of our consideration and our findings thereon are as under -
Point No.1 : Whether Complainant has proved deficiency in service on the part of Opposite Party ?
Findings : Yes.
Point No.2 : Whether Complainant is entitled to recover Rs.6,000/- with interest and cost of this proceeding from Opposite
Party ?
Findings : As per final order.
Reasons :-
Point No.1 :- Following facts are admitted fact that the Complainant was suffering from ailment of cold so he approached Opposite Party’s clinic on 10/10/06 for treatment and paid R.250/- as an consultation and Rs.5,960/- towards fees for one year treatment. The Complainant has produced registration form filled by her on 10/10/06 and receipts for aforesaid payment of Opposite Party.
It is the case of the Complainant that she was not getting relief from the treatment started by Opposite Party. Dr. Swaty Raman from Opposite Parties Clinic told her that it will take time as Homeopathy responds a little late. In Opposite Parties clinic medicines for one month were given to her and appointment of next treatment was given. On twice or thrice she visited clinic of Opposite Party. It is submitted by the Complainant that in the month of May, Opposite Party floated a scheme for existing patients that if existing patient pays the fees for the second year treatment then he willhave to pay only Rs.6,000/-and if existing patient pay for nextyear treatment after 30th May, 07 then he will have to pay more than Rs.7,200/-. In view of the aforesaid scheme floated by the Opposite Party to the existing patient, she paid fees for second year on 26/05/07. She has produced receipt for Rs.6,000/- issued by Opposite Party on 26/05/07 alongwith complaint at Exh.‘B’.
According to the Complainant that she took further treatment from the Opposite Party but there was no relief. So on 12/07/07 Dr. Swati Raman advised her CBC test. The Complainant did the test from Om Diagnostic Centre on 13/07/07. Even thereafter, the Complainant could not get relief from Homeopathic treatment so she started taking allopathic medicines. It is submitted by the Complainant that she told Dr. Swati Raman that she do not want to continue for second year treatment from the Opposite Party and that time Dr. Swati Raman advised the Complainant to visit Senior Dr. V.P. Shah. The Complainant met Dr. Shah who advised her to IgE level test. The Complainant underwent the test at Om Diagnostic Centre on 02/10/07 but there was no response from Homeopathic medicines. The Complainant had to take help of Allopathic medicines. The Complainant told Dr. Shah that she has decided to discontinue Opposite Party’s treatment for the next year and demanded refund of money which she had already paid for next year treatment. It is submitted that Dr. Shah told her that she has to take treatment and explained here that no refund would be granted. After one year treatment, Complainant stopped visiting Opposite Parties clinic. She demanded refund of her fees but there was no response. The Complainant has requested to direct Opposite Party to pay Rs.6,000/- with interest @ 15 % p.a. from 01/06/07.
Ld.Advocate for the Opposite Party has submitted that the Complainant has filed this complaint for refund of fees and as such, the complaint is not mentenable under the Consumer Protection Act, 1986. According to the Ld.Advocate for the Opposite Party, the Complainant has not made allegations of medical negligence or deficiency in service on the part of Opposite Party.
It is the say of the Complainant that as she was suffering from ailment of cold on the basis of representation made by Opposite Party she had taken treatment from the Opposite Party for about 1 year on payment of necessary fees but she did not get any relief from the Homeopathic treatment. It appears from the evidence on record that, the Complainant started taking treatment from Opposite Party i.e. on 10/10/06 and in the month of May, Opposite Party floated a scheme in which concession was offered to the existing patient for next year treatment. It is alleged by the Complainant that the Opposite Party by giving allurement collected fees from existing patients for next year treatment without considering grievance of the patient. It is submitted by the Complainant that in view of assurance given by the Doctors of the Opposite Party, she continued treatment and paid Rs.6,000/- for next year treatment. It is say of the Complainant as she could not get relief from Homeopathic treatment she was taking Allopathic medicines and this fact is not disputed by the Opposite Party. It is undisputed fact that after expiry of period of one year the Complainant has not taken further treatment from the Opposite Party clinic even though she had paid Rs.6,000/- for next year treatment. It appears that when Complainant was repeatedly telling Opposite Party’s doctor’s that she is not getting relief from homeopathic treatment it was not proper on the part of Opposite Party to insist Complainant to take further homeopathic treatment from their clinic and refuse to refund fees on technical ground that by signing declaration, the Complainant has admitted that charges paid are not refundable. The Complainant is not claiming any refund of first year treatment for which she has filled Registration Form No.026356 dtd.10/10/06. Opposite Party has not rendered any services to the Complainant in the next year for which they have received Rs.6,000/-form the Complainant. Considering peculiar facts & circumstances of the case, we think that refusal on the part of Opposite Party to refund Rs.6,000/- to the Complainant even though Opposite Party have not rendered any services i.e. treatment to the Complainant after 10/10/07 amounts to deficiency in service on the part of Opposite Party. Hence, we answer point no.1 in the affirmative.
Point No.2 :- For the reasons discussed above, we think it just to direct Opposite Party to pay to the Complainant Rs.6,000/-. The Complainant has claimed interest @ 15 % p.a. on Rs.6,000/- from 01/06/07. The Complainant has claimed interest at excessive rate. We think it just to direct Opposite Party to pay interest to the Complainant @ 9 % p.a. from 10/10/07 till realization of entire amount to the Complainant.
The Complainant has claimed Rs.50,000/- as compensation for mental agony and physical harassment. It appears that on the basis of representation made by the Opposite Party, Complainant started taking treatment from the Opposite Party but she could not get any relief from the treatment of Opposite Party. Considering above fact, we think it just to direct the Opposite Party to pay Rs.2,000/- as a compensation for mental agony and Rs.1,000/- as cost of this proceeding to the Complainant, therefore, we answer point no.2 accordingly.
For the reasons discussed above, we pass following order –
O R D E R
i. Complaint No.77/2008 is partly allowed.
ii. Opposite Party shall pay an amount of Rs.6,000/- (Rs. Six Thousand Only) to the Complainant with
interest @ 9 % p.a. from 10/10/2007 till realization of the entire amount.
iii. Opposite Party shall pay an amount of Rs.2,000/- (Rs. Two Thousand Only) as compensation for mental
agony and Rs.1,000/- (Rs. One Thousand Only) towards cost of this proceeding to the Complainant.
iv.Opposite Partyshall comply with this order within 1 month from the date of receipt of this order.
v.Certified copies of this order be furnished to the parties.
