Chandigarh

StateCommission

A/4/2019

Reviva Clinic Chandigarh - Complainant(s)

Versus

Grant David Alexander Lewis - Opp.Party(s)

Mandeep Singh Khillan, Adv.

05 Mar 2020

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

 

 

Appeal No.	:	4 of 2019
Date of Institution	:	22.01.2019
Date of Decision	:	05.03.2020

 

Reviva Clinic – Chandigarh, S.C.O. No.1-2-3, 1^st Floor, Opposite Hotel Park Plaza, Sector 17-D, Chandigarh through Dr. Pradeep Sohi, Medical Director.

…..Appellant/Opposite Party.

Versus

Grant David Alexander Lewis S/o Graeme Lewis R/o #5, Jassa Street, Bentleigh, Melbourne, Victoria 3165, Australia.

…Respondent/Complainant.

 Argued by:

 

Sh. Mandeep Singh Khillan, Advocate for the appellant.

Sh. Saurabh Dalal, Advocate for the respondent.

 

 

Appeal No.	:	136 of 2019
Date of Institution	:	09.07.2019
Date of Decision	:	05.03.2020

 

Grant David Alexander Lewis S/o Graeme Lewis R/o 22, Veronica Street, Bentleigh East, Victoria 3165, Australia.

…..Appellant/Complainant.

Versus

Reviva Clinic – Chandigarh, S.C.O. No.1-2-3, 1^st Floor, Opposite Hotel Park Plaza, Sector 17-D, Chandigarh through Dr. Pradeep Sohi, Medical Director.

…Respondent/Opposite Party.

Argued by:

 

Sh. Saurabh Dalal, Advocate for the appellant.

Sh. Mandeep Singh Khillan, Advocate for the respondent.

 

 

Appeals under Section 15 of the Consumer Protection Act, 1986.

 

BEFORE:   JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                MRS. PADMA PANDEY, MEMBER.

                MR. RAJESH K. ARYA, MEMBER.

 

 

PER  RAJESH  K.  ARYA, MEMBER

                   Vide this common order, we are disposing of aforesaid two appeals arising out of order dated 11.12.2018 passed by District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (in short ‘the Forum’), vide which, consumer complaint bearing No.365 of 2016 filed by the complainant (Grant David Alexander Lewis) was partly allowed directing the opposite party (Reviva Clinic) to refund an amount of Rs.4 Lakhs to the complainant along with interest @9% p.a. from the date of receipt till realization besides awarding global compensation of Rs.6 Lakhs for mental agony and  harassment and Rs.65,000/- as cost of litigation. The order was to be complied with by the opposite party within a period of 30 days from the date of receipt of its certified copy, failing with the awarded amounts were to carry penal interest.

2.             Appeal No.4 of 2019 has been filed by the opposite party for setting aside the impugned order whereas Appeal No.136 of 2019 has been filed by the complainant for enhancement in the award.

3.             After hearing the rival contentions of the Counsels for the parties and carefully going through the evidence on record, this Commission is of the opinion that appeal filed by the opposite party deserves to be dismissed being devoid of any merit and the relief awarded by the Forum to the complainant, who is an Australian Citizen, is required to be enhanced seeing the mental agony and physical harassment suffered by him, for the reasons to be recorded hereunder;-

4.                The undisputed facts of the case, as noticed by the Forum in its order, are that allured by brochure (Annexure C-6), which was uploaded on the internet by the opposite party highlighting the manner and mode of treatment of hair transplant and its success rate, the complainant came from Australia and approached the opposite party in August 2012 for treatment of his bald head. The assurance given in the aforesaid brochure, reads thus:-

“Exclusive hair transplants

• No other procedure or surgery done at this centre
• 100% guaranteed results
• We take great pride in our work
• We strive to ensure patient satisfaction
• We guarantee that each grafted hair will grow out, or it will be replaced free of charge in the subsequent session.”

5.             The opposite party performed treatment of hair transplant on the bald head of the complainant in August 2012 but to no avail. The opposite party received an amount of Rs.4 Lahks from the complainant at the time of the said procedure. It is also not in dispute and admitted on record that the opposite party admitted its fault vide communication dated 2.5.2014 (Annexure C-3), which reads thus:-

“Dear Sir,

I have seen your previous pics, even we fail to understand why you haven’t got the final result till now.  We are taking full responsibility for this.  Now we can offer you a complimentary session to fill all the area, or we can offer you the money back, which way you are comfortable with.

We also assure you that their will be no delay in email response in future. 

Warm regards and hope to hear from your side soon.

Dr. Sohi.”

6.                When the first treatment failed, the complainant visited India and approached the opposite party on 30.06.2014 for second round of treatment. However, the said treatment also could not yield any result.

7.                To the mind of this Commission, once the opposite party gave assurance for 100% guaranteed results, the two surgeries performed by it on the complainant, would have resulted some result but it did not happen so. This clearly established that 100% guaranteed results, as reflected by the opposite party, on internet, was with an attempt to allure innocent consumers and extract as much as money on said account. It was not their case before the Forum that 100% guaranteed results were not assured in the case of the complainant. The complainant approached the opposite party on the basis of their brochure advertised on internet.  The complainant came twice from Australia for the said treatment but the same did not yield any result. This is clearly an unfair trade practice adopted by the opposite party.

8.                Not only this, when first round of procedure did not work, the opposite party, vide afore-extracted communication dated 2.5.2014 (Annexure C-3), while admitting their fault, took full responsibility for the same and  also offered a complimentary session to fill all the area or in alternative offered to refund the money back to the complainant, which way the complainant was comfortable. The opposite party further assured that there would be no delay in email response in future. We, therefore, endorse the view held by the Forum that the opposite party failed to provide adequate and proper service as reflected by it on internet. We further support the view held by the Forum that vide aforesaid communication, the opposite party admitted its deficiency i.e. to say fault, imperfection, shortcoming, which was otherwise undertaken to be performed by the opposite party by way of advertisement and uploaded the brochure guaranteeing 100% success rate in such like matters. It may also be stated here that even after second procedure performed in the year 2014, hair did not grow as was assured. Therefore, it is a case of admitted deficiency in service on the part of the opposite party and its failure to give results against their commitment of 100% guaranteed result as reflected by the opposite on internet.

9.                As regard the contention of the opposite party that since the second procedure was done without consideration on 30.6.2014, therefore, the complainant was not a consumer, the Forum in our considered opinion, rightly held that since the opposite party admitted its fault and allured the complainant for the second procedure, the second procedure was in in continuation of the first procedure performed in 2012 and there was a continuing cause of action. Further, the payment of Rs.4 Lakhs received in 2012 was for both the procedures and in such a situation, it could not be said that the second procedure was without consideration.  The Forum, thus, rightly rejected the aforesaid contention of the opposite party. Not only this, it (Forum) also rightly held that the initial claim of the complainant was not time barred and further the amendment had not become time barred as it was confining to reduction in the claim amount and the body of averments made in the consumer complaint and the cause of action were not changed.  In our considered opinion, the Forum rightly rejected the contention of the opposite party on this account.

10.              Qua the consent signed by the complainant whereby, he certify that no one made any guarantee or warranty as to the final outcome of appearance that may be expected, in our considered opinion, the Forum further rightly held in Paras 14 and 15 of its order as under:-

“14.      Another contention of the learned counsel for the OP is, before undertaking the surgeries i.e. to say hair transplant in the year 2012 and 2014, consent memos (Annexure R-2 & R-3) were signed by the complainant in which there was a reference that as a result of surgical procedure or treatment it is not possible to guarantee a successful result or to assure an outcome that will meet his goals and expectation or satisfaction.  It is a consent memo signed in the relationship of a doctor and patient at the operation table where the patient is always under influence of a doctor and his fear while the contra claim as has been referred supra by way of advertisement and brochure uploaded on the internet (Annexure C-6) had assured the complainant with 100% success rate and it was guaranteed.  Now a somersault was taken by the OP just to defend itself or deceive the complainant on the operation table itself that it is not possible to guarantee a successful result.  This consent form is under pressure and it cannot be used in this situation reading in combination with the guarantee brochure (Annexure C-6) as referred by us in the foregoing paragraphs. In this particular situation and the record, consent letters will not come to the rescue of the OP – a qualified internationally famed doctor in the field. 

15.        Per this record, it was a hair transplant with 100% guarantee of success and it is not viewed on the parameter of standards laid for the medical negligence. Reasons are, complainant was not suffering from a disease which required treatment.  Rather it was a cosmetic hair transplant with 100% success rate as was assured by the OP.”

11.              Counsel for the opposite party (appellant herein) has also cited plethora of judgments, during the course of arguments. It may be stated here that all those judgments are of no help to the opposite party being distinguishable on facts and law as the instant case is a case, where the opposite party took full responsibility on it for not yielding any result against their assurance of 100% guaranteed result.

12.              Summing up all, what has been discussed above, we are of the considered opinion that there was gross deficiency and negligence on the part of the opposite party as rightly held by the Forum in its order. The opposite party has miserably failed to make out any ground to interfere with the well-reasoned order passed by the Forum. Resultantly, the appeal bearing No.4 of 2019 filed by the opposite party deserves to be out rightly dismissed.

13.              Now coming to the appeal bearing No.136 of 2019 filed by the complainant for enhancement in the award passed by the Forum, it may be stated here that in Para 16 of his appeal, the complainant has stated that the opposite party be penalized for misleading and luring customers and another amount for penalty, cost incurred on treatment, travel, hotel accommodation, food and loss of earnings for the treatment period, for playing with the emotion of the already disturbed person, compensation for the suffering borne by him due to the faulty services and repeated visits from Australia, harassment and sum in lieu of time and money spent in pursuing legal remedies forthwith. In the prayer clause in appeal, the complainant has given complete details incurred by him on aforesaid counts.

14.              No doubt, the Forum has awarded global compensation of Rs.6 Lakhs for mental agony and harassment and Rs.65,000/- as cost of litigation but in our considered, opinion, the same requires to be enhanced keeping in view the peculiar circumstances of the case. The opposite party filed appeal bearing No.4 of 2019 first and the complainant visited to defend the same. For filing this appeal for enhancement, the complainant again had to visit India in the month of July 2019. He duly annexed his affidavit in support of the contents of the appeal, which is dated 15.07.2019 and duly attested by Notary. He must have paid certain amount of litigation expenses for filing and appearing in this appeal on his behalf to his Counsel. Not only this, the opposite party filed appeal No.4 of 2019 first and dragged the complainant to this Commission to defend the same. Accordingly, the complainant also filed counter appeal No.136 of 2019 for enhancement. In this view of the matter, this Commission is of the opinion that the amount of compensation awarded by the Forum needs to be enhanced adequately. In our opinion, the amount of compensation if enhanced from Rs.6 Lahs to Rs.10 lakhs would meet the ends of justice. As such, Appeal No.136 of 2019 deserves to be partly allowed and the order impugned needs to be modified only to the extent indicated above qua enhancement in the amount of compensation awarded by the Forum.  

15.              For the reasons recorded above, the appeal bearing No.4 of 2019 filed by the opposite party is dismissed with no order as to costs. However, the appeal bearing No.136 of 2019 filed by the complainant is partly allowed and order dated 11.12.2018 passed by the Forum in CC/365/2016 is modified in the following manner:-

                   The opposite party (Reviva Clinic) is directed -

1. To immediately refund the amount of Rs.4.00 lakhs to the complainant alongwith interest @ 9% per annum (simple) from the date of receipt till realization.
2. To pay compensation Rs.10 lakhs to the complainant for deficiency in service and negligence resulting in mental agony and harassment; expenses incurred by the complainant i.e. twice for visiting India for treatment & also for filing the appeal, towards airfare, hotel accommodation and taxi charges etc.
3. To pay to the complainant Rs.65,000/- as costs of litigation.
4. This order be complied with by the opposite party within a period of 30 days from the date of receipt of certified copy of this order, failing which, the opposite party shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum (simple) from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.

16.              Certified copy of this order be placed in the file of cross appeal bearing No.136 of 2019.

17.           Certified copies of this order, be sent to the parties, free of charge.

18.              The file be consigned to Record Room, after completion.

Pronounced.

05.03.2020.

[RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

(PADMA PANDEY)

        MEMBER

 

 

(RAJESH  K. ARYA)

MEMBER

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