By: Sri. Sri. Mohamed Ismayil C.V., Member
The case of the complainant is as follows:-
1. The complainant was a diabetic patient and due to non healing ulcer in the right foot, below knee amputation was done at Baby Memorial Hospital Ltd, Kozhikode in the month of September, 2019. After getting medical advice from the hospital, the complainant decided to fit artificial leg. Then the opposite party and his trainer named Shabareesh approached the complainant and discussed about the nature, sustainability and practicality of the artificial leg, if it had fitted on the complainant. The opposite party made the complainant to believe that artificial leg was trouble free and can move like an ordinary man if the same was fitted. Believing the words of the opposite party he agreed to purchase the artificial leg and then the opposite party taken the measurement of the leg of the complainant. On the same day the opposite party collected Rs.25,000/- as advance payment from the complainant. As per the assurance given by the opposite party, the complainant contacted after one month and then the opposite party directed the complainant to approach the office of the opposite party for training. So in the month of February 2020, the complainant along with his wife and son went to the office and the opposite party gave a dummy leg for practice. The opposite party fitted the dummy leg on the complainant and instructed to undergo one month practice. It is also assured by the opposite party that after one month of training they will fit artificial leg by removing the dummy leg. At the time of fitting the dummy leg, the opposite party informed the price of the artificial leg having foot print action as Rs.65,000/- and so the complainant gave balance amount of Rs.40,000/-on the basis of demand made by the opposite party. The opposite party assured that he would give artificial leg after inform him about the good and convenient experience of use of dummy leg. So the complainant used the dummy leg for more than one month and got accustomed to the artificial means of movement. But due to Covid 19 pandemic government declared lockdown, as a result, the complainant could not contact the opposite party or to fit artificial leg though he was well trained with dummy leg. During the period of Covid 19 the complainant suffered much agony both physical and mental. In the month of January 2021, the complainant contacted the opposite party through phone and demanded for the artificial leg as promised. But the opposite party did not take any steps to fit the artificial leg. Instead prolonged the fitting of artificial by saying it will be fitted soon. When the complainant continuously contacted the opposite party through phone then on 12/03/2021 employee of the opposite party came to the working place of the complainant and removed the dummy leg except keeping the liner thereon and assured of fitting the artificial leg within two days. The removal of dummy leg and assurance of fitting the artificial leg was done in front of the family members of the complainant and the persons attended in the office at that time. On 15/03/2021 when the complainant contacted, the opposite party demanded for another Rs. 40,000/- as the balance amount of the price fixed for original with foot joint action artificial leg. The opposite party also wanted some more time to fit the artificial leg. Actually the opposite party agreed fit the artificial leg for Rs.65,000/- and after collecting the said price the opposite party demanded another Rs.40,000/- as the balance amount of the artificial leg. The demand of additional Rs.40,000/- by the opposite party was an act of making unlawful gain from the complainant. The opposite party did not provide artificial leg to the complainant as promised by him and thereby committed cheating. Being a document writer the removal of dummy leg caused much hardship and financial loss as he could not travel to his office and undertake work. The entire family is exclusively depended on the income of the complainant. The opposite party was liable to provide artificial leg with foot joint action or refund Rs.65,000/- with interest to the complainant . The act of removal of dummy leg and no action to fit artificial leg caused defaming of image of the complainant among the public. The complainant also suffered physical discomfort and ailment due to lack of artificial leg. As a result the complainant spent about Rs.1,00,000/- to cure the physical complaint. From the date of removal of the dummy leg the complainant could not go for his work and lost his clients resulting him in financial crisis. The complainant lost about 1,00,000/- rupees due to absence in attending his work. The complainant contended that all losses incurred to the complainant shall be indemnified by the opposite party. The complainant sent a legal notice dated 28/03/2021 to the opposite party. But on 17/04/2021 the opposite party sent a reply with false and incorrect contention. The opposite party did not provide artificial leg or refund the amount of Rs.65,000/- to the complainant. So the complainant fitted another artificial leg after securing Rs.1,00,000/- with much constrains. The complainant prayed for direction to the opposite party to refund of Rs.65,000/- with interest from December 2019 onwards. The complainant claimed Rs.1,00,000/- from the opposite party as the medical expenses incurred due physical ailment in the absence of artificial leg. The complainant also claimed Rs.1,00,000/- from the opposite party as compensation for the loss of job and claimed another Rs.1,00,000/- as the compensation for sufferings of mental agony and hardship caused due to the negligent act of the opposite party .
2. The complaint is admitted and issued notice to the opposite party. The opposite party appeared through counsel and filed version.
3. In the version, the opposite party denied all the allegation raised in complaint except those portions which are specifically admitted therein. According to the opposite party the complaint is not maintainable. On 18/12/2019 the opposite party contacted the complainant and collected the entire physical details including his disability. According to the opposite party he was convinced of the inconveniences associated with the leg amputation of the complainant and so explained about different types of artificial legs and its varying price rates to the tune with the budget of the complainant. The opposite party contended that he was helping the complainant to select a proper artificial leg for his use. Subsequently on 02/01/2020 the opposite party came along with his clinician named Shabareesh and measurement of the leg was taken for a most suitable customised artificial leg. According to the opposite party on that day the complainant selected an artificial leg worth Rs.1,05,000/- and issued a cheque of South Indian Bank, Chelari Branch for Rs.50,000/- as advance amount. The opposite party stated that the complainant did not pay Rs.25,000/- in the month of December 2019 as stated in the complaint. The complainant informed the opposite party that he was leaving for Madurai for his treatment and money was required. So a cheque was issued as advance payment. It is also instructed that cheque can be presented only after his return from Madurai otherwise he will make the advance in cash if money was available after his return. As such, on 10/01/2020 the opposite party received Rs.25,000/- through NEFT from one Anakha D. Nair for and on behalf of the complainant. So the opposite party did not present the cheque issued by the complainant. It is admitted in the version that the complainant was advised to contact the office of the opposite party for training. There was every chance for pain, wound and edema in the initial stage of use of artificial leg. So under the supervision of the opposite party the artificial leg was fitted. The office of opposite party located at both Ernakulum and Kozhikode. But the complainant chosen Ernakulum office to fit the artificial leg as the complainant was owned a flat to stay there. The statement in the complaint that artificial leg is to be fitted only after a training of one month by using dummy leg is not correct. The complainant has been fitted with the artificial leg same as ordered by the complainant himself. According to the opposite party artificial leg is fitted in different stages. In the initial period of one or two months there would be chance for changing the size of amputed area. So that a plastic socket is used in connecting portion of the amputed area and artificial leg. After some days carbon fibre socket is using instead of plastic socket by taking the changed measurement of the amputed area of leg. This usual procedure was adopted in the case of the complainant also.
4. Due to covid 19 pandemic the complainant could not continue follow up actions. The complainant made payments of Rs.40,000/- after his first payment of Rs.25,000/- through NEFT. The complainant was promised to pay balance amount of Rs.40,000/- within a week . The complainant informed his financial crisis resulted due to covid 19 pandemic and promised to remit the balance at very soon. The opposite party considered the financial condition of the complainant and dealt with empathical manner. Later the complainant informed that the balance amount was ready and requested to make arrangement for changing of the socket. On the basis of request made by the complainant the clinician from Kozhikode office went to the Chelari and removed the artificial leg and taken the changed measurement of the amputed area of leg. Thereafter the complainant intentionally made false statement that the price of artificial leg was already fixed as Rs.65,000/- and demanded to fit carbon fibre socket without making balance payment. The opposite party contended that the averments in the complaint is false and incorrect. At the time of taking order for the artificial leg the price was fixed as Rs.1,05,000/- . After making payment of Rs.65,000/-by two instalments , the complainant was wilfully evading from remittance of balance amount. It is explained in the version that the opposite party is running a reputed firm and so far no complaint was arised against the opposite party. The opposite party did not commit any kind of deficiency in service to entertain the complaint. There was no loss incurred to the complainant as alleged in the complaint. The complainant has no right to get relief from the Commission. So the opposite party prayed for dismissal of the complaint with compensatory costs.
5. The complainant and opposite party filed affidavits and also produced documents. The documents produced by the complainant marked as Ext. A1 to A3. Ext. A1 document is the copy of discharge summary dated 04/10/2019 issued by Baby Memorial Hospital Ltd, Kozhikode to the complainant. Ext. A2 document is the copy of investigation details (page No.4) issued from Baby Memorial Hospital Ltd, Kozhikode to the complainant. Ext. A3 document is the copy of Certificate of Disability dated 05/ 01/2022 issued by Govt. Taluk Head Quarters Hospital Tirurangadi to the complainant. The opposite party produced documents marked as Ext. B1 to B6. Ext. B1 document is the copy of Mutal Consent Form signed by the complainant showing financial details with respect to the price of the artificial leg. Ext. B2 document is the booklet showing clinic price list of the products of the opposite party in the year 2019. Ext. B3 document is the booklet showing clinic price list of the products of the opposite party in the year 2020. Ext. B4 document is the cash receipt book of the opposite party showing the business transaction during the period of 04/01/2020 to 02/06/2020. Ext. B5 document is the original cheque of South Indian Bank, Chelari branch issued by the complainant to the opposite party. Ext. B6 document is the copy of statement of account showing the payment of Rs.25,000/- made for and on behalf of the complainant to the opposite party.
6. Heard both parties in detail. Perused documents produced by the complainant and the opposite party. The points arised for the consideration of the Commission are:-
1) Whether the opposite party committed deficiency of service towards the complainant?
2) Relief and cost?
7. Point No.1 and 2
It is stated in the complaint that the complainant was affected with diabetic foot and a non healing ulcer was formed in the right foot culminating in below knee amputation. Ext. A1 and Ext. A2 document produced by the complainant shows the details of surgery undergone by the complainant. According to the complainant after undergoing surgery, the opposite party approached him with a proposal to fit artificial leg. After convincing the feasibility, nature and sustainability of the artificial leg the complainant paid Rs.25,000/- as advance for an artificial leg. As per instruction, the complainant went to the office of opposite party at Ernakulum and fitted a dummy leg having foot joint action. According to the complainant total rate of the artificial leg was fixed as Rs.65,000/- and balance Rs.40,000/- also paid as demanded by the opposite party on the same day. It is contended that the opposite party made assurance to fit artificial leg by removing the dummy leg after accustomed with use of dummy leg. After the relaxation of covid 19 lockdown, the complainant constantly contacted the opposite party to fit the artificial leg. But the opposite party did not turn up and evaded from his responsibility on frivolous excuses. On the contrary, the opposite party contended that rate of artificial leg was fixed as 1,0,5000/- and he received Rs.65,000/- by two instalments of Rs.25,000/- and Rs. 40,000/- from the complainant. It is added that the complainant was evading from the payment of balance Rs.40,000/-. Without making payment of balance amount, the opposite party cannot fit the artificial leg. According to the opposite party the price of the artificial leg selected by the complainant was worth Rs. 1,0,5000/-. Even though it was contended by the opposite party that the complainant was intentionally made false statement with respect to the price of the artificial leg but no steps were taken by the opposite party to get back the alleged balance amount of the artificial leg from the complainant. The opposite party produced a number of documents to show the price of the artificial leg so as to substantiate the contention made in the version. Ext. B1 document is the mutual consent form executed on 02/01/2020 in which total cost finalized for Rs.1,05,000/- to fit the artificial leg as contented by the opposite party. When going through the contents of the Ext. B1 document it is stated that an amount of Rs.50,000/- was received as advance payment. But it can be seen that the portion showing the balance amount in Ext. B1 document has been over written and so that creates a doubt on the genuineness of the document. Moreover Ext. B1 document also annihilates its reliability by stating unpaid amount as received. The complainant produced Ext. A3 document issued from Government Taluk Head Quarter Hospital, Tirurangadi. Ext.A3 document is the certificate of Disability showing that the complainant is 100% blind person due to diabetic retinopathy. In this context Commission considered the fact of 100% blindness of the complainant incapacitating personally to go through the contents of the above mentioned document. But in the version and affidavit it was stated that Rs.25,000/- was paid as first instalment through NEFT by one Anakha D kumar. To prove that contention the opposite party produced Ext. B6 document before the Commission. The case of the complainant was that he made payment of Rs.25,000/- as advance in cash. The contention of the opposite party was that the complainant instructed not to present the cheque until his return from Madurai. It was stated in the version that after the return of the complainant the opposite party received Rs.25,000/- as advance payment. So the Commission finds that there was no scope for the entry of Rs.50,000/- as advance payment in Ext. B1 document. More over the opposite party did not explain the reason for keeping Ext. B5 document even after advance payment of Rs.25,000/- was made on 10/01/2020.
8. When going through Ext B2 and B3 documents produced by the opposite party it can be seen that the price charged for such artificial leg selected by the complainant was Rs.98,038/- in the year 2019 and it was Rs1,03,800/- in the year 2020. It was also stated by the opposite party that the costumer has to be paid 5% as GST . But in Ext.B4 cash receipt; there was no sign of GST charge. The date of preparation of bill No 545 in Ext. B4 document was on 07/02/2020. But Ext. B6 document says that the opposite party received Rs25,000/- as advance on 10/01/2020 and no bill was seen as issued to the complainant by the opposite party. So in these circumstances the genuineness of Ext. B4 document is suspicious and the business transaction done by the opposite party is not tallying with the facts of this case .
9. The complainant is not in a position to lead a normal life without the support of his friends and society. The opposite party was well aware of this fact and the opposite party went to the place of the complainant for collecting the order of artificial leg. From the evidences adduced by both sides it can be seen that the opposite party visited the complainant more than one time. It is a fact that even during the time of lockdown related to covid – 19 pandemic, relaxations were given to the medical needs of the public by the authority. So delay of fitting of artificial leg under the pretext of lockdown cannot be accepted and the opposite party acted negligently towards the complainant. If it was possible for the complainant to go to the office at Eranakulam the opposite party could go to the place of complainant and fit the artificial leg by considering the physical condition of the complainant. So the delay occurred to deliver the product and fit the artificial leg on the part of the opposite party is unreasonable and unjustifiable. The Commission finds that there is deficiency in services on the part of the opposite party by delaying to fit the artificial leg and demanding more money in the final stage of transaction. So this Commission allows the complaint as follows:-
(1) The opposite party is directed to refund Rs.65,000/- to the complainant as the price of the artificial leg collected from the complainant.
(2) The opposite party is directed to pay Rs1,00,000/- to the complainant as compensation for the mental agony and hardship suffered by the complainant due to deficiency in service on the part of the opposite party.
(3) The opposite party is directed to pay Rs.50,000/- to the complainant as he adopted unfair trade practice by claiming exorbitant amount of Rs.40,000/- for fitting of artificial leg.
(4) The opposite party is also directed to pay Rs20,000/- to the complainant as the cost of the proceedings.
The opposite party shall comply this order within one month from the date of receipt of order or otherwise the entire amount shall bear 9% interest per annum from the date of order till realisation.
Dated this 7th day of November, 2022.
Mohandasan K., President
PreethiSivaraman C., Member
Mohamed Ismayil C.V., Member
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1 to A3
Ext.A1: Document is the copy of discharge summary dated 04/10/2019 issued by
Baby Memorial Hospital Ltd, Kozhikode to the complainant.
Ext.A2: Document is the copy of investigation details (page No.4) issued from Baby
Memorial Hospital Ltd, Kozhikode to the complainant.
Ext A3: document is the copy of certificate of disability dated 05/ 01/2022 issued by
Govt. Taluk Head Quarters Hospital Tirurangadi to the complainant.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Ext. B1 to B6
Ext.B1: document is the copy of Mutal Consent Form signed by the complainant
showing financial details with respect to the price of the artificial leg.
Ext.B2: document is the booklet showing clinic price list of the products of the opposite party in the year 2019.
Ext.B3: document is the booklet showing clinic price list of the products of the
opposite party in the year 2020.
Ext.B4: document is the cash receipt book of the opposite party showing the
business transaction during the period of 04/01/2020 to 02/06/2020.
Ext.B5: document is the original cheque of South Indian Bank, Chelari branch issued
by the complainant to the opposite party.
Ext. B6: Document is the copy of statement of account showing the payment of
Rs.25,000/- made for and on behalf of the complainant to the opposite party.
Mohandasan K., President
PreethiSivaraman C., Member
VPH Mohamed Ismayil C.V., Member
