| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II Udyog Sadan, C-22 & 23, Qutub Institutional Area (Behind Qutub Hotel), New Delhi- 110016 Case No. 475/2013 Sh. Kishor Sharma S/o Late Sh. Chandrabhan Sharma R/o H.No.-5, F/F, Vill-Adchini, New Delhi- 110017 ….Complainant Versus Curemax Healthcare 23, Siri Fort Road (Basement) Near Gargi College, Next to Hotel, Forest Green, New Delhi- 110049 Bourn Hall Clinic G-43, Green Park Main Market, 2nd Floor, above Citi Bank ATM, Green Park, New Delhi ….Opposite Parties Date of Institution : 10.09.2013 Date of Order : 13.12.2022 Coram: Ms. Monika A Srivastava, President Ms. Kiran Kaushal, Member Sh. U.K. Tyagi, Member ORDER Member: Kiran Kaushal - Facts of the case as pleaded by the complainant are –
Complainant lost his adolescent son on 03.03.2013 and upon seeing the advertisement by Bourn Hall Clinic (OP-2) renowned Infertility Clinic for IVF; Complainant consulted the Doctor of OP-2 for having a child. - It is stated that the Doctor told the complainant and his wife that they can have a child through In Vitro Fertilization (IVF), wherein the egg is fertilized with the sperm outside the body in the lab and then the fertilized egg is relocated inside the uterus of the woman to execute a successful pregnancy.
- The Doctor of OP-2 referred the complainant to Sh. Dheerendar Singh Tomar, for information about expenditure and fee. The complainant was told that the fee would be approximately Rs.4,00,000/- and it was specifically informed that all the medical process would be carried out by OP-2. Complainant made payments on various occasion and receipt of Curemax Health Care (OP-1) was given to the complainant instead of receipts of Bourn Hall (OP-2). The complainant made payment to the tune of Rs.3,65,000/- and the receipts of the same were provided by OP-1.
- It is next stated that after three-four days, OP-1 called the complainant to meet the surrogate mother and egg donor, however, the meeting never took place. Complainant objected for not providing the payment receipts of Bourn Hall (OP-2). Complainant also objected that all necessary tests and procedure of surrogate mother and donor was carried out at the centre of OP-1 which were substandard and not as per the promise. It is further stated that OP-1 and OP-2 did not provide any records relating to tests carried out on surrogate mother and donor.
- It is next stated that on 03.02.2013, OP-1 verbally informed that 8 embryos were fertilized in laboratory out of which 4 are good and 4 are of, not so good quality. Complainant was further informed that OPs were using only 2 embryos and other embryos were in kept in safe custody of OP-2, which would be used if required. After the procedure, complainant was informed on 17.08.2013 that pregnancy rate in the said case is 17.0 mlU/ml. whereas the limit of pregnancy rate should be 10-94 mlU/ml. The complainant on 22.08.2013 was next informed that the second test was carried out as per routine and result was 22.5 mlU/ml., which meant that the report was negative.
- Complainant was shocked at the negative report; however he approached OP-1 regarding the second embryo, which had been frozen. OP-1 had assured the complainant in writing, to provide free surrogate, embryo transfer and would charge only Rs.20,000/- ,in case of use of saved embryos. Later on OP-1 denied that any other embryo was frozen by OP-2.
- Aggrieved by the circumstances above, complainant approached this Commission with prayers to direct OPs to apologize for the inconvenience caused to the complainant. Further it is prayed that OPs be directed to refund the total amount of Rs.3,65,000/- @18% interest and pay sum of Rs.5,00,000/- towards mental agony and physical strain. Additionally, it is prayed that OP be directed to pay Rs.25,000/- towards cost of litigation.
- OP-1 resisted the complaint stating inter-alia that OP-1 is an independent company, which functions in the field of sourcing surrogates and egg/sperm donors. It is stated that OP-1 is engaged as Marketing agent by OP-2 and the role of OP-1 is limited to, as is specifically detailed in the Bourn Hall Associate Agreement dated 23.04.2013. OP-1 was to exclusively provide advisory and consultancy services for OP-2 on Infertility Treatment to couples coming at its centers.
- It is further stated that the medical process and correspondence with the complainant was done by OP-2 therefore OP-1 is neither responsible nor answerable for the acts or omissions of OP-2.
- It is submitted by OP-1 that the actual amount of fee quoted to the complainant was Rs.3,65,000/- the detailed break up was provided, which includes the IVF costs, donor and surrogate’s compensations till Embryo Transfer . It is stated that the complainant selected the surrogate out of three surrogates shown and the complainant had met the surrogate on various occasions. The complainant was even present at the time of embryo transfer at the premises of OP-2. It is stated that the complainant was informed that as per law it is not permissible to meet the egg donor because the identity of the egg donor has to be kept anonymous.
- It is further stated that OP-1 being the Business associate of OP-2 provided the receipts against the amount so received and stated that the same included the treatment from OP-2 and was as per the agreed package. It is further stated that OP-1 as a matter of abundant caution, conducts the preliminary tests on the surrogate and the egg donor till the embryo transfer is done. The preliminary tests conducted by OP-1 were as per medical standards and the tests were done in Government approved lab. It is stated that all the preliminary tests conducted by OP-1 were shown and its reports were provided to the complainant.
- As regards the process, OP-1 had no knowledge or information as the same was to be conducted by OP-2. Therefore, OP-1 had no knowledge about the number of eggs picked up or embryos created, transferred and the number of embryos frozen. It is next stated that OP-1 on grounds of humanity agreed to provide free surrogate (i.e., without any agency commission and embryo transfer against a professional fee of Rs.20,000/-, if frozen embryos were made available). However, later the complainant came to know that no embryos were frozen. Thus, denying any negligence or deficiency, it is prayed that the present complaint be dismissed against OP-1.
- OP-2 filed its written version stating inter-alia that OP-2 gave an advertisement for free consultation camp on 14.07.2013 with details of venue and consultation timings, where the complainant aged about 52 years alongwith his wife aged about 51 years visited the Green Park centre of OP-2 for having a child. Complainant’s wife came with history of secondary infertility. In view of her advanced age, she was advised for IVF treatment with donor egg plus surrogacy. It is stated that the complainant and his wife were specifically told that chances of conception in this mode of treatment are about 40% to 50%.
- It is stated that based on preliminary counseling, the complainant and his wife opted for Donor Surrogacy. Oocyte Retrieval (OCR i.e. egg pick up) was done on 31.07.2013 and 4 eggs were collected. On 03.08.2013 embryo transfer was done and 2 embryos were transferred to surrogate. It is stated that to find out the outcome of the treatment Beta hCG was recommended and the test done on 20.08.2013 on surrogate showed Beta hCG level at 17 mlU/ml, whereas the normal range is between 61-2922. It is next stated that in the case of complainant Beta hCG was again conducted on 22.08.2013, which came out to be 22.5 mlU/ml., which is negative. In ideal circumstances Beta hCG rate should get double every 48 hours. The said negative report was communicated to the complainant and accordingly further treatment was advised. OP-2 further states that OP-2 was responsible only for providing the treatment and OP-1 was responsible for providing the donor/surrogate. It is also stated that OP-1 was responsible to take care of the financials of the process of the IVF and OP-2 has received only sum of Rs.80,000/- from OP-1 towards providing the medical services to the complainant.
- It is also stated that all the necessary tests as recommended by OP-2 on donor and surrogate was conducted at Green Park Diagnostics (Govt. Approved Lab) and the result of the same were duly shared with OP-1 and the complainant by the said lab. It is clarified that OP-2 do not conduct tests at their clinic and normally ask its patients to get the tests conducted at Govt. Approved Labs only. It is also stated that outcome of the reports were shared with the complainant at appropriate stages. It is next submitted that the treatment provided was as per the standard protocol and OP-2 fully discharged its duties in accordance with the laid down standards and norms. It is further stated that OP-2 never said that 2 embryos were kept as frozen.
- Therefore, denying any deficiency of service it is prayed that the instant complaint be dismissed with heavy cost.
- Rejoinder to written statement of OP-1 and OP-2 is filed. Evidence as well as written arguments are filed on behalf of parties. Material placed on record is perused. Submissions made on behalf of the complainant are heard.
- On perusal of the material placed before us, it is seen that the complainant is aggrieved not only by the improper treatment provided by OPs but also on account of not providing proper and timely reports, receipts and the documents related to his case. As regards, proper treatment complainant has failed to establish that the standard process/ protocols for the treatment of IVF was not provided by OP-2. In the absence of any substantive evidence regarding the same, this plea of the complainant is rejected.
- It is Complainant’s further case that the reports of the tests conducted pre and post procedure were not made available to the complainant. There is only one report annexed with the pleadings of the complainant, which shows that the said test was conducted in a Govt. Approved Lab. However, neither of the OPs have placed any report of the surrogate or receipts on record to show their bonafides and prove that the tests were conducted to show that surrogate was physically and medically capable of sustaining the pregnancy.
- As regards, the second frozen embryo, both the OPs are found blaming each other. It is evident from the conversation (filed by way of transcript) that OP-1 admitted of having two embryos frozen. Moreover vide letter dated 26.08.2013, OP-1 promised to provide free Surrogate and embryo transfer with Rs 20,000/ charge towards professional fee for transfer. OP-1 is found grossly deficient in service for giving false statements and false hopes to the complainant and not honouring the commitment made.
- The complainant had approached OP-2 for the IVF treatment as it is a world famous infertility clinic for IVF. Relying on the reputation of OP-2, complainant attended the camp of OP-2 and was misled to believe that all the tests and procedures were to be conducted by
OP-2. Complainant was not informed about the arrangement between OP1 and OP-2. He was made to run from one pillar to the other pillar for reports and to seek information regarding the procedure and reports in his case. We find OP-1 and OP-2 to be indulging in unfair trade practice and deficient in service for not providing the reports of the surrogate mother and the donor and harassing the already aggrieved complainant.
- In view of the discussion above, we allow the complaint and direct OP-1 and OP-2 to jointly and severally, refund the amount paid by the complainant after deducting the professional fee of the doctor for transfer of embryo ,surrogate and egg donor which we quantify at Rs 65,000/. We are of the opinion that ends of justice would be met if OPs retain Rs 65,000/ and refund Rs 3,00,000/- with interest @6%, jointly and severally to the complainant within three months from the date of filing of the complaint, failing which OPs shall pay Rs.3,00,000/- with interest @9% p.a. till realization.
File be consigned to the record room. Order be provided to the parties as per rules and uploaded on the website. | |
