Punjab

Ludhiana

CC/21/385

Davinder Arora - Complainant(s)

Versus

Indira IVF Hospital Pvt.Ltd - Opp.Party(s)

Complainant in person

28 Jun 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 385 dated 17.08.2021.                                                        Date of decision: 28.06.2024. 

 

Davinder Arora aged about 41 years son of Late Sh. Ved Parkash, Resident of H. No.1208/19, St. No.6, Bhai Himmat Singh Nagar, Dugri, Block-A, Ludhiana.

                                                                                      ..…Complainant

                                                Versus

1. Indira IVF Hospital Pvt. Ltd., # 3^rd/4^th Floor, B-20, 19-K, Ferozepur Road, Opp. PAU Gate No.1, Sarabha Nagar, Ludhiana-141001 Through its Authorized Person/Manager.
2. The Director, Indira IVF Hospital Pvt. Ltd., # 44 Amar Niwas, Opposite M B College, Kumharo Ka Bhatta, Udaipur 313001, Rajasthan.                                                                                                                                                          …..Opposite parties 

Complaint Under Section 35 of the Consumer Protection Act, 2019.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Davinder Arora in person.

For OPs                          :         Sh. Parmod Jallan, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Shorn of unnecessary details, the facts of the case are that on 01.03.2020, the complainant along with his wife Mrs. Sapna Arora visited OPs branch at Ludhiana for the first time and deposited consultation fee of Rs.500/-. Dr. Bakul Kochhar attended the complainant and advised them for certain scan and semen analysis and some test for which the complainant deposited Rs.5500/- as registration and test fees bearing registration No.ELPBW72. Dr. Bakul advised for IVF (In Vitro Fertilization) and asked to come for the first day of MP. The complainant stated that in the meanwhile Covid-19 Pandemic occurred and he dropped the IVF treatment due to apprehension of infection. In the month of July, the complainant received call from the OPs branch at Ludhiana with request to resume the procedure of IVF but the complainant denied the same due to COVID-19 threat. However, on 12.07,.2020, the complainant visited the OPs branch at Ludhiana where Dr. Hina Ali attended and assured the complainant to start the IVF procedure as there was no threat of COVID-19 in their centre, upon which the complainant deposited Rs.4382/-. The complainant further stated that on 31.07.2020, he again visited the OPs for first day of MP and Dr. Bakul attended him and did a scan of wife of the complainant along with some Covid tests and charged Rs.2400/- from the complainant. Said Dr. Bakul prescribed some medicines to complainant and his wife and prescribed injections to be used on 31.07.2020. The complainant deposited Rs.20,000/- and after his admission, on 03.00 PM first injection for IVF was administered. They were asked to visit at 05.30 AM on next day for next injection.

                   The complainant further stated that after coming back to home, his wife faced some reddish allergic reactions on her body and swelling on certain parts. On 01.08.2020, the complainant and his wife visited the OPs for second injection and informed them about the reactions on body of his wife but no reply was given by the concerned person.  On 02.08.2020 morning, the complainant received call from junior doctor who informed that Covid test of his wife has been found positive due to which they are not allowed in the clinic. As such, the complainant and his family members got themselves isolated and also contacted the OPs for prescribing any drug for allergic reactions on the body of his wife but no satisfactory reply was received. The complainant talked to Dr. Hina Ali who replied that reactions was not their fault and further there is no solution of the same which shows the unethical behaviour of the OPs. On 27.08.2020, the complainant visited OPs branch at Ludhiana and met Dr. Hina Ali and asked for refund of Rs.20,000/- upon which he was told that only Rs.10,500/- could be refunded. However, no refund was given to the complainant. The complainant many times approached the OPs to resolve his issue but he did not receive any proper response and explanation from the OPs, which shows negligence and reluctance on the part of the OPs. The complainant has suffered harassment, mental agony, depression due to act and conduct on the part of the OPs due to negligence and deficiency in service on the part of the OPs. Even the complainant sent a legal notice dated 24.09.2020 to the OPs but no reply was given. Hence this complaint whereby the complainant has prayed for issuing direction to the OPs to pay Rs.20,000/- along with compensation of Rs.2,00,000/- and litigation expenses of Rs.12,000/-.

2.                Upon notice, the OPs appeared and filed joint written statement and assailed the complaint by taking preliminary objections on the ground of maintainability; lack of jurisdiction; lack of cause of action; the complainant is not a Consumer as per section 2(7) of the Consumer Protection Act etc. the OPs averred that no opinion of medical experts has been obtained by the complainant to show any such negligence or deficiency in service on their part. Moreover, the complaint has been filed with ulterior motive to extort money from the OPs.

                    On merits, the OPs reiterated the crux of averments made in the preliminary objections. However, the OPs admitted the visit of the complainant and his wife on 01.03.2020 for having a child through IVF procedure and techniques for which some tests were prescribed. The OPs stated that during COVID pandemic on 12.07.2020, the complainant and his wife visited their center at Ludhiana to enquire regarding functioning of their centre and to start/resume their treatment. Even they were explained about the safety protocols and precautionary measures and ICMR guidelines to avoid COVID-19 infections as during the IVF procedure the possibility of getting infection cannot be completely ruled out. The complainant and his wife started their treatment on 31.07.2020 and even a written consent for undergoing the treatment, Covid Questionnaire Form and Covid consent form were duly got signed from wife of the complainant. After that patient was administered injection to start her stimulation on 31.07.2020. RT-PCR (Covid test) of the patient was done which was found positive. According to the OPs, the patient got infected Covid positive prior to her visit on 31.07.2020 in their centre. Further the 1^st and 2^nd injections were administered on the abdominal part of the body and if there was any allergic reaction, that can be detected at the time of administering 2^nd injection. On 02.08.2020 the complainant contacted the OP regarding rash at injection site and body ache of his wife as such Dr. Hina Ali advised Tab Cetrizine and asked him to contact any hospital in emergency as OP is a fertility clinic and not a hospital. The complainant was duly informed regarding Covid positive of his wife and were advised to take treatment from some hospital and to follow Covid protocols. The OPs further stated that the demand of refund made by the complainant is irrational. However, the OPs offered to provide explanation to his concern but the complainant remained insisted for full refund. Even the amount paid by the complainant was utilized for injections and tests for treatment and as such, the complainant is not entitled for any refund. Rather it is the complainant who had chosen not to continue the treatment from the OPs and insisted for full refund which was not permissible. The OPs claimed to have provided the services for the amount received from the complainant. The OPs have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

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

4.                In evidence, the complainant tendered his affidavit as Ex. CA and reiterated the averments of the complaint as well as affidavit Ex. CB of Ms. Sapna Arora. The complainant also placed on record documents Annexure-A is the copy of his Aadhar Card, Annexure-B is the copy of receipt of Rs.500/- dated 01.03.2020, Annexure-C is the copy of receipt of Rs.5500/- dated 01.03.2020, Annexure-D is the copy of tax invoice dated 12.07.2020 of Rs.4382.38, Annexure-E is the copy of receipt of Rs.20,000/- dated 31.07.2020, Annexure-F is the copy of legal notice dated 24.09.2020, Annexure-G is the copy of legal notice dated 01.04.2021, Annexure-H is the copy of receipt of Rs.2400/- dated 31.07.2020, Annexure-L is the copy of IVF treatment chart/procedure, Annexure-M is the copy of refund letter of Rs.20,000/- dated 27.08.2020 and closed the evidence.

5.                On the other hand, the counsel for the OPs tendered affidavit  Ex. OP1/A of Dr. Bakul Kapoor of the OPs along with documents Ex. Op1 is the copy of Authority Letter, Ex. OP2 is the copy of Semen Analysis Report as well as other investigations/tests reports and closed the evidence. 

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

7.                Admittedly from 01.03.2020 onwards, the complainant along with his wife Mrs. Sapna Arora hired Assisted Reproductive Technologies (ART) services from the OPs who claim themselves to be the pioneer in this field including IVF (In Vitro Fertilization) Treatment. On that day, the complainant along with his wife underwent diagnostic investigations and tests as prescribed by the doctors of the OPs for which an amount of Rs.5500/- was paid to the OPs. Thereafter, a registration No.ELPBW72 in the name of wife of the complainant was generated. However, due to spread of Covid-19 Pandemic and due to fear of infection, the follow up procedure was shelved by the complainant and his wife. On 12.07.2020, the complainant along with his wife again consulted the OPs and the concerned doctor recommended resumption of IVF procedure while adopting all the safety protocols, precautionary measures and ICMR guidelines to avoid COVID-19 infection at the centre of the OPs. The complainant paid an amount of Rs.4382/- vide invoice dated 12.07.2020 Annexure-D. As per advise of the doctors of the OPs, the complainant along with his wife visited the OPs on 31.07.2020 being the first day of menstrual cycle. The OPs charged an amount of Rs.2400/- vide receipt dated 31.07.2020 Annexure-H for scan of wife of the complainant and for COVID tests. The Ops also obtained COVID Questionnaire Form Ex. OP2 (at page 4) and consent form Ex. OP2 (at page 9) from the wife of the complainant and accordingly swab samples were collected for conducting RT-PCR (Covid tests). The OPs administered first injection for stimulating ovulation process and after charging an amount of Rs.20,000/- vide receipt dated 31.07.2020 Annexure-E from the complainant and further advised her to report  for follow up on next day at 05.30 AM for administration of second injection. The 2^nd injection was also administered on 01.08.2020. During initial procedure, she experienced some painful allergic reactions on her body which was brought to the notice of the OPs as well. However, on 02.08.2020, the complainant was telephonically informed by the OPs that his wife had tested Covid positive and further treatment cannot be carried out. However, on the other hand, the OPs are asserted that Dr. Hina Ali prescribed Tab Cetrizine for treating allergic reaction and there is no deficiency in service on their part and the treatment was discontinued owing to the patient being tested Covid positive.

8.                At the very outset, the counsel for the OPs contended that the complainant is not a consumer of the OPs within the meaning of Section 2(7) as per Consumer Protection Act, 2019, as it is the wife of the complainant namely Ms. Sapna Arora who was to undergo to complete IVF procedure. On the other hand, the counsel for the complainant refuted the contentions raised by the counsel for the OPs by contending that the OPs were negligent in providing IVF procedure to the wife of the complainant without awaiting the report of Covid test.

                   Section 2(7) of the Consumer Protection Act, 2019 defines the word “consumer”, which reads as under:-

                 “Consumer” means any person who:-

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii)hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and include any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.”

Explanation. -For the purposes of this clause, -

(a) the expression "commercial purpose " does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;

 (b) the expressions "buys any goods " and "hires or avails any services " includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;”

Perusal of this definition shows that even the beneficiary of hired services can also be treated as a consumer.

                   According to Wikipedia “In vitro fertilisation (IVF) is a process of fertilization where an egg is combined with sperm in vitro ("in glass"). The process involves monitoring and stimulating a woman's ovulatory process, removing an ovum or ova (egg or eggs) from their ovaries and letting a man's sperm fertilise them in a culture medium in a laboratory. After the fertilised egg (zygot) undergoes embryo culture for 2–6 days, it is transferred by catheter into the uterus, with the intention of establishing a successful pregnancy.” So it is evident that a partner/donor of sperm is also subjected to certain diagnostic tests for initiation of IVF procedure. Likewise, the complainant also underwent tests and scan analysis report Ex. OP2 was also generated on 01.03.2020. It is not the case of the OPs that the payments were made by the patient and not by the complainant. The complainant along with his wife, in-quest of parenthood, jointly approached the OPs and availed the services of the OPs for consideration. Needless to say that their interest was common. Therefore, the complainant is a consumer of the OPs within meaning of Section 2(7) of the Consumer Protection Act, 2019 and is competent to maintain the present complaint for himself and on behalf of his wife, who has also testified and corroborated the version of the complainant vide her affidavit Ex. CB.

9.                From the perusal of the record, it is evident that on 31.07.2020, the OPs took swab samples for Covid tests but without awaiting its result, the doctor immediately started IVF procedure for stimulation. Even on the next day i.e. on 01.08.2020, the second injection was administered and by that time, the report was still awaited. It is on 02.08.2020 when the OPs came to know about the patient being tested Covid positive. The doctors of the OPs  were required to adopt a guarded and safe approach in resuming the IVF treatment and they could have awaited the outcome of RT-PCR test and could have complied with the guidelines pertaining to Covid-19. The OPs have shown undue haste in resuming the IVF process with commercial angle in their mind so that time also, the patient may not change its mind. So non-adoption of standard operating procedure with regard to Covid-19 amounts to negligence and adoption of unfair trade practice on the part of the OPs.

                   Now adverting to the quantum of compensation, reference can be made to Priyanka Tandon and others Vs Bhatia Global Hospital & Endosurgery Institute and Others in Consumer Complaint No.14 of 2010 decided on 16.03.2023 whereby the Hon’ble National Consumer Disputes Redressal Commission, New Delhi for computation of compensation made the following observation in para No.22 of its judgment:-

“…….The painful experience of women that not achieved a full-term pregnancy, the burden and pain experienced by women undergoing ART treatment and the potential risks to women's health to be considered….”

 

So applying ratio of above cited judgment, it would be just and appropriate if the Ops are jointly and severally directed to pay a composite compensation of Rs.50,000/- to the complainant.     

10.              As a result of above discussion, the complaint is partly allowed with direction to the OPs to pay composite costs of Rs.50,000/- to the complainant jointly and severally within 30 days from the date of receipt of copy of order, failing which the OPs shall be liable to pay interest @8% per annum from the date of order till its actual payment. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.        

11.              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:28.06.2024.

Gobind Ram.