Punjab

Ludhiana

CC/20/329

Neha Lohia - Complainant(s)

Versus

Lifecall International Pvt.Ltd - Opp.Party(s)

Gurdeep Singh

24 Jul 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:329 dated 03.12.2020.                                                         Date of decision: 24.07.2023.

Neha Lohia aged 30 years wife of Mr. Ishan Lohia, resident of House No.819-D, Model Town Extension, Near Santokhsar Singh Sabha Gurdwara, District Ludhiana.                                                                                                                                                                                             ..…Complainant

                                                Versus

1. LifeCell International Pvt. Ltd. Head Office: 26, Vandalur Kelambakkam Main Road, Keelakottaiyur, Chennai (Tamil Nadu) -600127.

Branch Office:

Chamber No.806, 8^th Floor, Apra Tower, Behind Hotel A, Feroze Gandhi Market, District Ludhiana.

2. Dr. Chirayu Padhiar, Director of LifeCell International Pvt. Ltd. Head Office: 26, Vandalur Kelambakkam Main Road, Keelakottaiyur, Chennai (Tamil Nadu) -600127

…..Opposite parties 

Complaint Under Section 35 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Gurdeep Singh Sherdil, Advocate.

For OPs                          :         Sh. Jagdish Rai Baghla, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Shorn of unnecessary details, the facts of the complaint are that opposite party No.1 who is an Indian biotechnology company and provides services for preservation of umbilical cord blood stem cells and tissue stem cells and as such,   on 24.08.2016, the complainant got herself registered vide CRM No.160001000244 with opposite party No.1  in her 8^th month of pregnancy for preservation of umbilical cord blood stem cell and tissue stem cell for her baby with expected delivery on or before 29.09.2016, for which the complainant paid Rs.18,490/- vide invoice No.0010/I0440/16-17 and also paid an amount of Rs.4000/- as storage fee.

                   The complainant averred that on 17.09.2016, she started having labor pains and opposite party No.1 was informed and an official of opposite party No.1 reached to Shah Nursing Home, Ludhiana where the complainant was admitted for the delivery. A baby girl was born on 17.09.2016 and the official of opposite party No.1 namely Jatinder Kumar got signed some papers from father-in-law of the complainant as husband of the complainant was out of city and also took the stem cells for preservation and left the hospital. After 11 days on 28.06.2016, Metabolic Screening Profile was created of the baby. Thereafter, the complainant had been paying annual storage charges every year for preservation & storage of stem cells which can be checked online. The complainant further stated that she and her husband were scrolling and surfing on internet about the status of her CRM then it transpired that word “MALE” was mentioned whereas she gave birth to a female child. However, the Metabolic Screening Profile finds mentioned word “FEMALE”. The complainant and her husband immediately contacted opposite party No.1 through phone calls and emails for asking the reason about mentioning of MALE but instead of giving any reply, after 3 days simply corrected the same by mentioning “FEMALE” on the online system. According to the complainant this was not a minor mistake as due to the same, she suffered mental tension as to what will be the fate of the preserved stem cells with opposite party No.1. There is a possibility that the stem cells are pertaining to some other baby who may be a MALE and the same might have been exchanged or damaged or disposed of by opposite party No.1. When opposite party No.1 was confronted, its officials shifted the burden upon the complainant by saying that Purple Card Form was also signed by her father-in-law Narinder Lohia below the word “MALE” in the form under the Section of Health History Reconciliation and other particulars of the baby were mentioned on other pages but needful was not done. The official of opposite party No.1 acted negligently. Rather the column reserved for mandatory signatures of the doctor was also left blank. Even in reply to legal notice, the opposite parties claimed that once signatures of Narinder Lohia father-in-law of the complainant were obtained on the purple card and information authenticated, then no other signatures required.   Even the opposite parties claimed that it is not mandatory to capture the child’s gender and LifeCell is voluntarily getting those information for the convenience of its clients. Moreover, as per purple card, one section is in respect of mother and second is relating to the baby and signatures of father-in-law of the complainant were obtained on the maternity section and non on the section relating to baby. The negligence if any has been committed by the opposite parties and now they are putting whole blame upon the nursing staff of the hospital as well as the father-in-law of the complainant as without seeing the child how can father-in-law of the complainant can claim that the child is MALE or FEMAE. The purple card details have been filled by Mr. Jatinder Kumar, the sample collector of the opposite parties.  The complainant further stated that even the opposite parties did not make necessary correction after pointing out the mistake to them. The officials of the opposite parties trapped the complainant by falsely claiming that it is a number one company who stores and preserves the stem cells but the opposite parties have misappropriated the amount paid by the complainant. The complainant stored the stem cells of her baby to protect her from future major disease but the negligence on the part of the opposite parties has caused mental agony and harassment to the complainant. As such, the opposite parties have adopted unfair trade practice and there is deficiency in service on the part of the opposite parties.  The complainant sent a legal notice dated 22.10.2020 to the opposite parties through her counsel to which reply dated 05.11.2020 was sent by the opposite parties through email denying al the allegations. Hence this complaint whereby the complainant prayed for restraining the opposite parties from discarding/destroying the stem blood cells and tissue cells of her baby under CRM No.160001000244 and also to issue direction to the opposite parties to make some arrangements at their own expense to undergo HLA Typing test/Matching test of baby and stem cells from some other certified laboratory and to pay compensation of Rs.15 ac besides costs of Rs.22,000/-. 

2.                Upon notice, the opposite parties appeared and filed joint written statement by taking preliminary objections that the complaint is not maintainable, the complainant having no locus standi, the complainant is not a estopped from filing the complaint, the complaint is hopelessly time barred and there is no negligence or deficiency in service on their part.

                   On merits, the opposite parties admitted the fact of registration and payment of Rs.18,490/- and Rs.4000/-. The opposite parties stated that on every registration, a CRM (Client Relationship Management) number is allotted to the sample which is the only guiding factor with respect to any future reference, irrespective of any other factor. The opposite parties admitted that the Paramedic Company Personnel immediately reached the hospital on being intimated about the admission of the client for delivery as he was to pick and dispatch the simple at the earliest to the laboratory at Chennai. The opposite parties further stated that the father-in-law of the complainant and the Paramedics of the company were also present at the time of delivery on 17.09.2016 and after delivery, the staff of hospital handed over the sample to the Paramedic, who after recording the CRM number approached the father-in-law of the client Mr. Narinder Lohia for further information required to be recorded in the purple card. As per the information supplied by father-in-law, the purple card was duly filled, read over and shown to him who after hearing, understanding and admitting the contents of same to be correct, signed the same in token of its correctness. The Metabolic Screening Profile is a different service than that of cord blood and Tissue Stem cell preservation, for which a sample from the baby was taken on 28.09.2016 i.e. about ten days after the birth of the baby and results thereof were sent to the client. The opposite parties further stated that the complainant has been paying till 2019 and thereafter she stopped paying further the fees for continuously availing the services of the Opposite party Company. The status of every CRM number is uploaded on the website of the Opposite Party Company for the convenience of the client. The cord blood and tissue Stem Cell preservation and Metabolic Screening Profile are two different services. The sample for the cord blood and tissue Stem Cell was collected from the Nursing Home on 17.9.2016 and there on the spot, the details were recorded in the Purple Card, as per the disclosure made by father-in-law of the client, who was the only attendant present in the Hospital on behalf of the client, whereas the sample for the Metabolic Screening Profile was taken on 28.9.2016, directly from the baby by the staff of the opposite party and recorded the related information with respect to the Metabolic Screening Profile. Thereafter, the result of Metabolic Screening Profile was provided to the complainant. The on line status of gender discrepancy regarding cord blood and Tissue Stem cell and Metabolic Screening Profile was immediately corrected the moment it was brought to the knowledge of them. However for correction in hard copy, the complainant was requested to send the written request, in spite of the fact that information recorded in purple card was provided by her father-in-law himself but the complainant, instead of sending written request choose to file the present complaint. In case the complainant complies with the requirement of the company, the company has no objection to change the gender in the hard copy. The opposite parties further stated that the mistake, if any, is on the part of father-in-law of the complainant. The gender recorded in Purple Card were disclosed by father-in-law of the client himself and the same was duly signed by him after hearing, understanding and admitting the contents to be correct. It is further submitted that the mention of the "male" or "female" on the Purple Card, not at all affect the quality preservation and retrieval of the sample. Moreover, the identification of the sample is only with the CRM number allotted at the time of registration of the agreement prior to the delivery of the baby and the same number is labeled at the time of picking and sending the sample, after delivery, from the hospital. The number mentioned in the preservation certificate is the same which was allotted at the time of registration of the client prior to delivery. All the samples preserved are identified with the CRM number only and not with male or female or any other criteria or factor. As per the opposite parties they have processed and preserved more than 3,00,000 umbilical cord samples at this date and the number is still increasing.

                   The opposite parties further stated that the assertion of the complainant that her father-in-law did not know the gender of the baby is not digestible as the attendant of the patient is the first person to be informed about the well-being of the mother and the child as well as gender. According to the opposite parties, the Tissue and blood samples are biomedical products and are prone to deterioration and required to be sent to the laboratory at the earliest to get the best result so the paramedic after completing the formalities in the hospital, left immediately to dispatch the sample to the laboratory, instead of wasting the time to verify the gender, which is otherwise of no consequences with respect to quality, processing the sample, processed and stored/preserved and issued the preservation certificate in acknowledgement of the receipt and preservation of the sample. Rather the client was advised to mention CRM number in case of any further inquiry with respect to the sample. Moreover, the preservation certificate is the only authenticated document issued with respect to the services provided and the consideration received by the Company in which the CRM number and blood group of the baby is mentioned not the gender. Ironically, the complainant did not try to match the blood group mentioned in the certificate with that of her child or intentionally ignored to mention the results in complaint. The opposite parties have denied the other allegations mentioned in the complaint and also prayed for dismissal of the complaint.

3.                In support of her claim, the complainant tendered her affidavit Ex. CA in which she reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of Aadhar card of the complainant, Ex. C2 is the copy of booklet and cover letter, Ex. C3 is the copy of invoice dated 24.08.2016, Ex. C4 is the copy of preservation certificate, Ex. C5 is the copy of birth certificate of the child, Ex. C6 is the copy of screening profile, Ex. C7 to Ex. C9 are the copies of payment receipts, Ex. C10 and Ex. C11 are the copies of screen shots, Ex. C12 is the copy of purple card, Ex. C13 are the copies of emails sent by the complainant and replies given by the opposite parties, Ex. C14 is the copy of legal notice, Ex. C15 to Ex. C17 are the postal receipts, Ex. C18 is the copy of reply sent by the opposite parties, Ex. C19 is the copy of receipt of annual charges, Ex. CXx is the certificate under Section 65-B of the Indian Evidence Act and closed the evidence.

4.                On the other hand, counsel for opposite parties tendered affidavit Ex. RA of D. Mahesh, Company Secretary of LifeCell International Private Limited, Chennai along with documents Ex. R1 is the copy of baby cord agreement, Ex. R2 is the copy of Health History Reconciliation, Ex. R3 is the copy of Metabolic Screening Profile, Ex. R4 is the copy of preservation certificate, Ex. R5 is the copy of cord tissue preservation report, Ex. R6 is the copy of cord blood preservation report, Ex. R7 is the copy of cord blood microbiology test report, Ex. R8 is the copy of maternal blood test report and closed the evidence.

5.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply along with affidavit and documents produced on record by both the parties. We have also gone through written arguments submitted by the opposite parties.  

6.                The complainant by invoking jurisdiction of this Commission by raising consumer dispute with regard uploading of discrepant gender status of CRM (Client Relationship Management) number allotted to the complainant with regard to storage and preservation of umbilical cord blood stem cells and tissues of her baby girl by the opposite parties.

7.                Admittedly, the opposite parties are engaged in preservation of umbilical cord blood stem cells and tissues of a baby.

8.                Before adverting to the merits of the case, the first and foremost question which arises for consideration by this Commission is whether the dispute raised by the complainant is amenable to the jurisdiction of this Commission or not?

9.                The complainant has initiated the product liability action against the opposite parties who are ‘product service provider’ within the meaning of Section 2(38) of the Consumer Protection Act.

                   Section 2(21) of the Consumer Protection Act defines the word “Goods” as under:-

“2(21)         “goods” means every kind of movable property and includes “food” as defined in cause (j) of sub-section (1) of section 3 of the Food Safety and Standards Act, 2006 (34 of 2006)”

Whereas Section 2(33) of the Consumer Protection Act exhaustively defines the word “Product” as under:-

“2(33)         “product” means any article or goods or substance or raw material or any extended cycle of such product, which may be in gaseous, liquid, or solid state possessing intrinsic value which is capable of delivery either as wholly assembled or as a component part and is produced for introduction to trade or commerce, but does not include human tissues, blood, blood products or organs.”

So it is crystal clear that the human tissue, blood product and human organs have been specifically excluded from the definition of the product. In the present case as well, the dispute relates to the collection, storage and preservation of the umbilical cord blood stem cells and tissues of the baby of the complainant, which does not fall within the ambit of “goods” or “product”. So the product liability action cannot be maintained in this regard. Hence the complaint is not maintainable and is hereby dismissed.

10.              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 the order be supplied to the 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)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                       President         

 

Announced in Open Commission.

Dated:24.07.2023.

Gobind Ram.

 

 

Neha Lohia Vs Life Cell International                   CC/20/329

Present:       Sh. Gurdeep Singh Sherdil, Advocate for complainant.

                   Sh. Jagdish Rai Baghla, Advocate for OPs.

 

                   Arguments heard. Vide separate detailed order of today, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                       Member                     Member                                       President         

 

Announced in Open Commission.

Dated:24.07.2023.

Gobind Ram.