BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 27^TH DAY OF FEBRUARY 2023

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-
   1. The OP3 hospital be directed to pay a sum of Rs.3,00,000/- as compensation to the complainant for its acts of negligence and deficiency of service by not preserving the umbilical cord (placenta) of the new born baby, inspite of the mycord kit provided.
   2. The OP2 company be directed to refund the usurped amount of Rs.70,000/- directly to the OP1 and ensure the closure of the loan account of the complainant.
   3. The OP1 company be directed to refund the collected loan amount of Rs.29,165/- directly to the complainant and close the loan account of the complainant.
   4. The OP1 to 3 being in hand-in-gloves be directed to settle the score among themselves and further directing the OP1 not to charge any onward payments with interest from the complainant.
   5. Directing the OP4 to restore the credit ratings of the complainant without demure and pay the later a compensation of Rs.1,00,000/- for the formers act of malfeasance.
   6. Direct all the Ops having common intention to harass the complainant to pay him a global compensation of Rs.5,00,000/- jointly and severally.
   7. Direct all the Ops not to indulge into unethical trade practices in future.
   8. Direct all Ops to bear the cost of this case.
   9. Further be pleased to pass all such orders.
2. The case set up by the complainant in brief is as under:-

The complainant is an IT employee and married one Smt.Kirthi Mayi Sahoo. Out of the wedlock his wife became pregnant in the month of March 2019 and she was given regular medical advise and checkups by the 3^rd OP hospital.

3. It is further case of the complainant that during the treatment at OP3 hospital the representatives of the OP2 have suggested for preservation of umbilical card of the impediment baby after birth to ensure stem-cell preservation to meet future health complications of the child if ever arises in future.  The complainant and his wife had consented for the same.  
4. As per the agreement the OP2 company is provider of the operators(kids) for stem-cell preservations and had a tiap with the Op3 hospital and much before the child birth the apparatus was provided to the hospital.
5. The complainant in order to meet the cost of the apparatus he has availed a loan of Rs.70,000/- from the OP1 company repayable @ Rs.5,833/- EMIs spread over 12 installments on 05.09.2019 and the borrowed amount was placed at the disposal of the OP2.  
6. The complainant’s wife developed labour pain in the night of 10.12.2019 and she was admitted to OP3 hospital and where she gave birth to a male child at 2.40 am of 11.12.2019.  The attending staffs of the hospital committed deficiency of service as they failed to preserve the umbilical card of the baby and neither the patient nor the complainant could come to know about such negligence instantly.  After coming to know of the fiasco the complainant vide email dated 11.12.2019 at 8.04 pm inform the fact to both OP1 and2 requesting to refund the amount of Rs.70,000/- and to receive the mycord kit(apparatus).
7. The complainant once again renewed the email by sending another email dated 14.12.2019 the request was responded by the OP2 official on the same day.  The requests to OP2 company were renewed umpteen number of times later but of no avail.  On the face of stoic silence on the part of the parties concerned the complainant has sent another email dated 15.01.2020 to the OP1 apprised the facts once again and sought refund.  He has also sent an email to OP2 reminding to inform the current status.
8. It is further grievance of the complainant that the OP1 even though was made aware of the fact of negligent act of the OP3 hospital in not preserving the umbilical card and resultant intimation of the complainant about the misfeasance and request for refund of the amount by taking back the kit by the OP2 went on collecting EMIs without resorting to the affected party and in the process the OP1 has collected five EMIs of Rs.5,833/-, but the OP1 never interacted or reverted back to the OP2 or 3 through out for which the complainant had to request for stoppage of payment to his bank.  A few officials of the OP1 bank in the mean time had started haranguing for which the complainant has been interacting with the officials and arrest the harassments.  
9. It is further grievance of the complainant that the OP4 an entity had somehow entered into the quagmire and had caused the credit ratings of the complainant to be downgraded, thus unjustifiable rendering the complainants a persona-non-grata vis-à-vis other financial institutions.  The complainant has been a victim of circumstances and acts of omission and commission of OP1 to 3 and the OP4 being an independent institution should have interacted with the complainant before down grading his credit ratings thereby damaging his goodwill and reputation in the market.  In view of this the Bank of Baroda declines to grant a home loan to the complainant.  The sequence of events stated above with supporting documents annexed with the complaint go a long way to prove the acts of negligence, deficiency of service, unethical trade practices coupled with misfeasances and malfeasances.
10. The OP3 hospital have not preserved the umbilical card of the new born baby or prospecting harvest of steam cells at the time of need.  The second OP neglected to collected back the unused mycord kit and refund the amount of Rs.70,000/- being borrowed by the complainant.  The OP3 whimsically collecting five EMI’s of Rs.5833/- totaling Rs.29,165/- inspite of being made informed of the fiasco.  The OP4 maligning and jeopardizing the image, goodwill reputation and credit worthiness of the complainant unilaterally, without giving any scope to the later of being heard or offer any explanations.  Hence this complaint.
11. Inspite of service of notice, OP1 remained absent and placed exparte.  OP3 and 4 have appeared and filed their versions.  Inspite of given sufficient opportunity the complainant has not taken steps against OP2 and hence complaint was dismissed against OP2 as steps not taken.  
12. The OP3 filed their version stating that the complaint is liable to be dismissed as not maintainable either in law or on facts.  There is no cause of action for the complainant to file this complaint.  There is no privity of contract between the complainant and OP3.  The complainant has failed to produce the copy of the agreement between himself and the OP2 and it clearly shows that the complainant has not approached this commission with clean hands.  The complainant is not a consumer as per the C.P. Act.
13. It is further case of the OP3 that the transaction involved in the lis is only refund of money paid by the complainant to the OP2 and as such there is no deficiency of service which is rendered by this OP3 to the complainant.  
14. It is further case of the OP3 that the wife of the complainant was taking treatment with one of the doctors in their hospital and she was scheduled for delivery on 14.12.2019 however on 10.12.2019 the complainant’s wife was rushed to the hospital with certain complications i.e., (1) 9 months of amenorrhea (2) Labour paint since evening on 10.12.2019 and (3) spotting per virginal.  The situation of the complainant’s wife was critical and she was treated with medical management of post partum hemorrhage and under the said circumstances the question was to save the lives of mother and baby and there was no time or occasion to cut the umbilical cord and preserve it and further more the complainant had none given any such instruction to preserve the umbilical cord nor handed over any apparatus (kids) to the doctor.
15. It is further case of the OP3 that preserving umbilical cord is not a routine process and it is collected only on adequate intimation is given to the doctor in advance.  No such intimation was given to the doctors of OP3 by the complainant.  The collection kit will be in the possession of the patient or her attendant and it is their responsibility to hand over the same to the doctor and in this case the complainant has failed to hand over the same to the doctor.  The collection of the umbilical cord can be done only at a specific stage during the delivery and providing the kit even few minutes later will not help and as such the allegations made by the complainant as denied as false.  Hence this OP3 have not committed any negligency or deficiency of service, therefore the OP3 prayed for dismissal of the complaint.
16. OP4 have filed their version by way of counter affidavit by the Deputy vice-President namely Sri. Pankaj Patil, Client services of OP4.
17. It is the specific contention taken by the OP4 that the complaint is not maintainable against this OP4.  This OP4 is a credit information company who is working and governed by the provisions of CICRA and the rules and regulations made there under.  This OP4 is neither a necessary nor a proper party and he has to be deleted in this complaint or the complaint has to be dismissed against OP4.  
18. As per the relevant provisions of CICRA rules and regulations this OP4 is functioning as follows;
    1. Credit information is the credit history of the previous and current borrowings/credits availed by both individual and entities like partnership firms, private and public limited companies, proprietary concerns.  The information is applicable on all loan products.  This OP4 issue credit information report in a standard format and it does not create the information or provide inputs thereon.  The CIR merely reflects the information submitted to this OP4 by its member credit institutions as required under the CICRA and rules and regulations made there under. This OP4 only acts as a repository of credit information.
    2. It is further case of the OP4 that any rectification in the data base of the credit information or change in the credit information can only be made in accordance with the provisions of sec 21(3) of CICRA, which states that a credit information company like OP4 can made a correction, deletion or addition of the CIR only after such correction, deletion or addition has been certified as correct by the concerned credit institution.  Only a credit institution has the right to rectify, modify its respective credit information.  
    3. As per the terms and provisions of CICRA this OP4 cannot unilaterally make any correction to the CIR.  The credit information appearing in the CIR is furnished by this OP is the aggregate the information submitted to it any unilateral correction of the credit information as sought by the complainant would have rendered this OP4 liable for being penalized by the RBI under CICRA.
    4. This OP4 is not responsible for the accuracy completeness and veracity of any information reported /submitted by the member credit institutions. Such a responsibility lies with the reporting institutions and this OP4 has no reason to believe that any information there is incorrect.

19. In the light of the role and functions of the OP4 this OP4 is neither a proper nor a necessary party in this complaint, this OP cannot change or update any information on its own. It is the credit institutions or banks direct this OP4 to make any changes in the credit information this OP is under statutory obligation to follow the same. Hence this complaint is not maintainable against this OP4 and liable to be dismissed.
20. Inspite of given sufficient opportunity the complainant remained absent and not adduced any evidence.  The complaint was dismissed against OP2 as steps not taken by the complainant. The OP3 have lead evidence by filing affidavit evidence of one Sri.Manjunath, working as centre head in their hospital and they have not filed any documents. The OP4 have filed their counter affidavit and they have also not produced any documents.
21. Inspite of given sufficient opportunity both the parties have not submitted any arguments.  Hence perused the documents and evidence placed on the file

22. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OPs?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

23. Our answers to the above points are as under:

Point No.1 & 2:  Negative

Point No.3: As per final orders

REASONS

24. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version and evidence of OP3 and documents annexure a to g filed by the complainant.
25. The complainant is claiming the relief against the OP 3 hospital for its negligency and deficiency of service for not preserving the umbilical cord of the new born baby inspite of mycord kit provided and further claiming refund of Rs.70,000/- from the OP2 with a direction to pay the amount to OP1 and to closure of the loan account of the complainant and further direction to the OP1 to refund the loan amount collected Rs.29,165/- from the complainant account directly and to close the loan account of the complainant and further direction to OP1 to 3 to settle the score among themselves and further direct this OP1 not to charge any onward payments with interest and further direction to the OP4 to restore the credit ratings of the complainant and to pay the compensation of Rs.1,00,000/-  and direct all the Ops to pay global compensation of Rs.5,00,000/- jointly and severally and further direct the Ops not to indulge into unethical trade practices in future and for cost and other reliefs.
26. It is clear from the complaint and the documents that the complainant’s wife who was  a pregnant during March 2019 was taking regular medical treatment from the OP3 hospital. During the course of the treatment they came across the representatives of OP2 and the complainant and his wife both have given consent for the suggestion given by the OP2 for preservation of umbilical cord of the impeding baby after birth to ensure stem cell preservation to meet future health complication of the child if ever arises in future.  
27. The OP2 company is provider of the apparatus(kits) for stem cell preservation and had a tiap with the OP3 hospital and much before the child birth the apparatus was provided to OP3 hospital.
28. The complainant has availed a loan of Rs.70,000/- for purchase of the apparatus from OP2. And agreed to repay the loan amount with 12 equal monthly installments @ 5,833/- pm on 05.09.2019 and the amount was placed at the disposal of OP2.  
29. The wife of the complainant gave birth to a male child at 2.40 am., on 11.12.2019. The attending staff of OP3 hospital have failed to preserve the umbilical cord of the baby and neither the patient nor the complainant would come to know about such negligence instantly.  After coming to know about this fact the complainant has demanded the OP1 and 2 for refund of R.70,000/- and to take back the mycord kit.  Inspite of his request the OP2 failed to take back the kit and refund the amount.  The OP1 have not stopped the recovery of the amount inspite of repeated request and sending of umpteen number emails.  None of the Ops have complied to the request of the complainant.
30. The complainant after filing of the complaint remained absent and has not adduced any oral evidence. He has produced only copies of the discharge summary issued by OP1 and bunch of emails sent to OP1 and 2 from 11.12.2019 till 22.04.2020 as document No.2 to 6.
31. On the other hand the OP3 hospital authorities have filed their version and also got examined their working centre head Mr.Manjunath and they have not produced any documents.  They have clearly stated before this commission that the complainant wife was taking treatment with one of the doctors in their hospital and she was scheduled for delivery on 14.12.2019 but she was rush to the hospital with certain complications on 10.12.2019 itself and she gave birth to a male child on 11.12.2019 at 2.40 am.  As the situation was critical the complainant’s wife was treated with medical management and post partum hemorrhage and under the said circumstances the question was to save the lives of mother and baby and there was no time or occasion to cut the umbilical cord and preserve it and further more the complainant has not provided any such instruction to the doctor to preserve the umbilical cord or nor handed over any apparatus(kits) to the doctor.
32. It is further contention taken by the OP3 that preserving the umbilical cord is not a routine process and it is collected only on adequate information is given to the doctor in advance. There was no such intimation was given to the doctors of the OP3 by the complainant.  In addition to this the collection kit will be in possession of the complainant patient or attendant and it is their responsibility to hand over the same to the doctor and in this case the complainant failed to hand over the kit to the doctor with adequate information. The collection of umbilical cord can only be done at a specific stage during the delivery and providing the kit even few minutes later will not serve the purpose.  
33. It is clear from the evidence of the OP3 that the complainant has failed to hand over the kit with adequate information to the doctors of the OP3 at the time of delivery of his wife and hence they failed to collect the same.  Hence there is no negligency or deficiency of service on the part of the doctors at OP3 hospital.
34. It is also clear from the affidavit filed by OP4 that the OP4 is functioning as per the relevant provisions of CICRA rules and regulations the OP4 issues the credit information report on the basis of the information submitted by the concerned credit institutions.  Any rectification in the data base of the credit information or change in the CIR can only be made in accordance with the provisions of sec 21(3) of the CICRA and this OP4 has no authority to make any corrections or deletions in the credit information unilaterally.  Under these circumstances, the OP4 cannot be directed to make any corrections in the CIR of the complainant.  The OP4 is also neither the necessary nor a proper party in this complaint. Under these circumstances the complainant has failed to establish any deficiency of service on the part of OP3 and 4.
35. Even though there is a serious allegations made by the complainant against OP2 he has failed to take steps against the OP2 and hence the complaint is already dismissed against OP2. The relief sought by the complainant is only against OP2 and they are liable for all the negligent act and deficiency of service and fraud committed to the complainant.  When the complainant has failed to serve the notice to the OP2 and failed to take steps to bring the OP2 on record the complainant is not entitle for any relief. Hence the complaint is liable to be dismissed. Therefore, we answer point No.1 and point No.2 in the negative.
36. Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is Dismissed. No costs.
2. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 27^th day of FEBRUARY, 2023)

Documents produced by the Complainant-P.W.1 are as follows:

NIL

Documents produced by the representative of opposite party;

NIL