Date of filing: 21.09.2019

Date of Disposal: 03.07.2023

BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

                               BENGALURU – 560 027.

DATED THIS THE 03^rd DAY OF JULY, 2023

CONSUMER COMPLAINT NO.1477/2019

PRESENT:

SRI. SHIVARAMA, K:

SRI. CHANDRASHEKAR S NOOLA: MEMBER

SMT. REKHA SAYANNVAR

Mr.Pratap Kasturi,

Aged about 35 years,

Resident of:

SS Luxury PG for gents,

Room No.505, Sri Balaji Layout,

Munnekollal, Marathalli,

Bengaluru – 560037.……COMPLAINANT

(Advocate – K.Vyjayanthi)

M/s. Kaya Clinic,

Above Kotak Mahindra Bank,

Shop No.408, 1^st Floor,

Bengaluru – 560043.

(Advocate – Sri.Ramesh T)

******

//JUDGEMENT//

BY SRI.SHIVARAMA K, PRESIDENT

The complainant has filed this complaint U/s. 12 of the Consumer Protection Act, 1986 for a direction to the opposite party to refund a sum of Rs.73,830/- with interest @ 24% p.a and such other relief as this commission deems fit in the circumstances of the case.

2. It is not in dispute that, the object of opponent is providing healthcare, aesthetics, beauty and personal care services in India and abroad.  Further it is not in dispute that OP has a clinic for the above said services in the address shown in the cause title of the OP.  Further it is not in dispute that on 04.01.2019 the complainant approached OP for the treatment for the scars and pimples on his face.  Further it is not in dispute that on the treatment been given by OP, the complainant has not been cured.

It is the further case of the complainant that the course recommended by the OP was for a period of three months.  Further on 11.03.2019 the complainant approached OP with the same agony which was on 04.01.2019 and OP Doctor (Dermatologist) recommended for few additional tablets and suggested for some more sessions and the complainant had followed the same with all hopes that it would give fruitful results but ultimately either the tablets or the sessions helped the complainant in any way and all his efforts, money went in vain.  Further the complainant had decided to quit the opponent on 24.05.2019.  Further on 15.06.2019 he had consulted another Doctor and the pimples and scars were reduced within 15 days of the treatment.  Further in total the complainant had paid a sum of Rs.73,830/- to the opponent.  Further inspite of the above said payment been made and obtained four months treatment, there was no positive result.  Hence, the complainant got issued legal notice on 23.07.2019 calling upon the OP to refund the above said amount paid.  Since the OP did not pay the same the complaint came to be filed.

3. It is the further case of the opponent that, on the visit of the complainant to OP clinic, an appointment with the then available Doctor was duly arranged wherein the skin of the complainant was duly examined.  Pursuant to which, the complainant was apprised of the treatment involving 3-6 sessions of Scarlet and PRP for his scar treatment and 6-8 sessions of peel and Q switch laser treatment for his pigmentation (treatment).  Further the complainant was explained about the whole procedure of the treatment along with the aforesaid pre/post sessions precautions measures which were to be followed.  Further it was also said to the complainant that the treatment results may vary from person to person depending upon the individual skin type, age etc.  Further the complainant had given consent for the treatment and with regard to the variation in the result of the treatment.  Further without any negligent attitude the treatment was given to the complainant by discharging the duty by OP Doctor honestly and diligently and there was no negligence at all.  Hence, it is sought to dismiss the complaint.   

4. To prove the case the complainant (PW-1) has filed affidavit in the form of his evidence in chief and got marked Ex.P-1 to P-14 documents.  The representative of OP (RW-1) has filed affidavit in the form of his evidence in chief and got marked Ex.R-1 to R-2 documents. 

5. PW-1 and RW-1 have reiterated the fact stated in their respective pleadings in the affidavits filed in the form their evidence in chief. 

          6. The points that would arise for consideration are as under:

i) Whether the complainant has proved the deficiency of service on the part of the opposite party?

    ii) Whether the complainant is entitled for the relief 

as sought ?

     iii) What order?

7. Our findings on the aforesaid points are as follows:

Point No.1:  In negative

Point No.2:  In negative

Point No.3:  As per the final order for the following;

REASONS

8. POINT NO.1:- It is the contention of the learned counsel for the complainant that as prescribed by the opponent the complainant took treatment but the same has not resulted any favour to the complainant.  Further, the treatment was recommended for a period of three months and the complainant approached the OP on 04.01.2019.  Since the scar and pimples on the face has not been reduced the complainant decided to quit the opponent for the treatment and on 24.05.2019 the complainant stopped the treatment from the opponent.  Thereafter, on 15.06.2019 he approached another Doctor and got cured within 15 days of the treatment.

9. It is the further contention of the learned counsel for the complainant that the OP did not produce any documents with regard to the treatment been obtained from some other Doctor.  Admittedly, no documents have been produced by the complainant to substantiate that the complainant approached another Doctor and got cured the scar and pimples on his face within 15 days.  Hence, no documents been placed before us with regard to the adverse effect said to have been caused to the complainant on the medicine prescribed by the opponent. 

10. It is the further contention of the learned counsel for the opponent that the complainant did not follow the entire treatment as prescribed.  Neither the complainant nor the opponent has produced the prescription prescribed by OP.  Hence, no material is placed before this Commission with regard to the prescription prescribed by OP.  No doubt photo prints of the complainant have been produced by the complainant and OP.  On perusal of the photo prints, any opinion cannot be formed with regard to the scar and pimples on the face of complainant.  Hence, there is no merit in the contention of learned counsel for the OP that the complainant did not take follow up treatment and the course has not been followed.

11. It is the further contention of the learned counsel for the opponent that the complainant after a considerable delay had posted on social media about the alleged filing of the instant case.  Thereafter, the opponent had asked the complainant to meet the OP clinic for further treatment if advised.  The opponent has produced the said email correspondence but all those email correspondence were after the case been filed.  The question is whether the opponent had treated the complainant with their best ability or not.  It is not the case of the complainant that when he visited the opponent clinic, the opponent was negligent in their treatment.  Further we feel medical opinion may differ with regard to the course of action to be taken by a Doctor treating a patient.  Further it is the principle that the medical negligence cannot be attributed against the Doctor unless the cogent evidence is produced.  Further inspite of best treatment been given if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the Doctor to be guilty of negligence.  Hence, in the case on hand we feel the evidence available before us is not sufficient to prove that OP was negligent in its treatment.  Further any kind of deviation in the treatment also cannot be attributed deficiency on the part of the Doctor unless it is proved that the same was not prescribed under medical rules.   Accordingly, we answer this point in negative.

12 Point No. 2:- In view of the findings given on point No.1, this point is answered in negative.

13. POINT No.3:- In view of the discussions made above and findings given on point No.1 & 2 we proceed to pass the following:

1. Complaint is dismissed.  No order as to costs.   

2. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.

3.  Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

(Dictated to the stenographer and transcribed by him and typed by him and corrected and then pronounced in the open Commission on 03^rd day of July, 2023)

(Chandrashekhar S Noola)(Rekha Sayannvar)(SHIVARAMA, K)

//ANNEXURE//

Witness examined from the side of complainant:

Sri. Pratap Kasturi, the complainant (PW-1).

Documents marked from the side complainant:

1. Copy of three original receipts dated 04.01.2019 (Ex.P-1 to    P-3.
2. Copy of legal notice dated 27.07.2019 (Ex.P-4)
3. Postal receipts (Ex.P-5)
4. Postal acknowledgment (Ex.P-6)
5. Copy of certificate U/s.65 (B) of Indian Evidence Act (Ex.P-7)
6. Seven photos of complainant (Ex.P-8 to P-14)

Witness examined from the side of opposite party:   

Sri.Mahesh R, who being working as Project and Maintenance Executive of OP (RW-1)

Documents marked from the side of Opposite Party:

1. Copy of letter of authority dated 15.11.2021.
2. Copy of consent form dated 08.02.2019.

(Chandrashekhar S Noola)(Rekha Sayannvar)(SHIVARAMA, K)

 vln*