Haryana

Ambala

CC/110/2021

Sidharth - Complainant(s)

Versus

P.C. Sharma - Opp.Party(s)

Pushkar Sharma

01 Mar 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	110 of 2021
Date of Institution	:	23.02.2021
Date of decision	:	01.03.2023

 

Sidharth s/o Sh. Ashok Kumar, age about 32 years, Resident of House No.186/6, Behind Kalistan Mandir, Naya Bazar, Nahan, Distt. Sirmaur, H.P.

          ……. Complainant.

                                                Versus

P.C. Sharma, Eye Hospital, Arya Chowk, Near Telephone Exchange, Ambala City, Haryana.

….…. Opposite party

Before:        Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri. Vinod Kumar Sharma, Member.           

 

Present:      Shri Pushkar Sharma, Advocate, counsel for the complainant.

                             Shri D.S. Punia, Advocate, counsel for the OP.                       

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Party (hereinafter referred to as ‘OP’) praying for issuance of  directions to the OP to refund the amount of Rs.48,000/- along with interest @ 12% p.a from the date of deposit of the amount alongwith compensation on account of pain suffered by the complainant to the tune of Rs.30,000/- and cost of litigation of Rs.11000/-. Or grant any other relief which this Commission deems fit in the facts and circumstances of this case.

2.             Brief facts of the case are that the complainant visited the Eye Hospital of the OP on 14.6.2013 for operation of his eyes, through Laser on an estimated cost/charges of Rs.40,000/-. The OP told the complainant not to go in for laser Operation of eyes and suggested that ICL surgery is more effective which cost around Rs.1,18,000/-. The OP convinced the complainant to undergo the above said operation of ICL of the Eyes. As such, the complainant deposited Rs.48,000/- in cash with the above said Hospital of the OP. After that the OP  told the complainant that he will convey him the date of operation to be conducted, through telephone or by sending a letter as for the said operation, lenses have to be procured which takes at least one month. After coming back from the hospital of the OP the complainant consulted his relatives and decided not to undergo the ICL Eye surgery. After two days the complainant, visited the Hospital of the OP and refused to undergo the said ICL Operation of his Eyes and requested for refund of the advance amount deposited by him. However, despite the fact that the OP agreed to refund the amount and told that the amount Rs.48,000/- deposited by the complainant, will be refunded within one month, but it failed to refund the same.  Legal notice dated 8.9.2014 was served upon the OP in the matter. In reply to the said legal notice, the OP replied that the complainant took false stand and alleging falsely and after manipulation of a concocted story asked the complainant to pay Rs.16,050/- to the OP. The complainant is the permanent resident of Nahan Town and as such, has filed Consumer Commission bearing no.95/2014 before the District Commission, Sirmaur at Nahan (H.P.) but vide order dated 26-7-2019 the same was returned back for want of territorial jurisdiction with permission to file a fresh complaint in appropriate Consumer Commission having jurisdiction and therefore the complainant has now again filed this complaint before this Commission. 
3.           Upon notice, the OP appeared and filed written version and raised preliminary objections to the effect that the complaint is highly time barred and beyond limitation as it is being filed in respect of some advice of operation given by OP on 14.06.2013; that the issue in complaint has already been adjudicated upon in Consumer Commission bearing no.95/2014 before the District Commission, Sirmaur At Nahan (H.P.) vide order dated 26- 07-2019 as such the matter cannot be re-agitated again and is barred by principle of res-judicata; the complainant has not come to this Commission with clean hands and he is guilty of suppression of true and material facts etc. On merits, while admitting the factual matrix of the case with regard to making payment of Rs.48,000/- by the complainant for ICL of his eyes which cost around Rs.1,18,000/-, it has been stated that the complainant himself is at fault and failed to discharge his own obligations for the required treatment. Rather he put the OP in an embarrassing position by not making the requisite payment in time. The OP purchased the specially customized lenses on making payment of Rs.64,050/- against the initial payment of Rs.48,000/- deposited by the complainant. Thus the OP incurred a sum of Rs.16,050/- from his own pocket as the cost of lenses, which the complainant failed to pay despite repeated calls and requests. The complainant after initiating the process withdrew from treatment process for reason best known to him and when he was called upon to make payment of balance i.e. Rs.16,050/- as the remaining cost of special customized lenses purchased for the complainant, from a big concern dealing in such specialized lenses, he did not cooperate and refused to pay the remaining balance and did not visit the hospital. The OP never refused for operation rather time and again requested and called the complainant for surgery, as the hospital has already initiated the process of procurement of lenses but the complainant did not cooperate and after putting the hospital in a fixed position, started making false claim of refund of his amount and started a legal process, which was promptly appropriately replied by the OP. Rest of the averments of the complainant were denied by the OP and prayed for dismissal of the present complaint with costs.
4.           Complainant tendered his affidavit as Annexure CA alongwith documents as Annexure C-1 to C-19 and closed the evidence of the complainant. Learned counsel for the OP tendered affidavit of Dr. P.C. Sharma, Eye Hospital, Arya Chowk, Ambala City as Annexure RW1/A alongwith Annexure R-1 to R-9 and closed the evidence on behalf of OP.
5.           We have heard the learned counsel for the parties and have also carefully gone through the case file.
6.           Learned counsel for the complainant submitted that by not refunding the amount of Rs.48,000/- paid by the complainant as advance towards the aforesaid surgery, despite the fact that the OP did not perform the surgery, as the  complainant was not interested to get it done after consulting his relatives, the OP is deficient in providing service, thereby causing huge financial loss and mental agony and harassment to the complainant.  
7.           On the other hand, learned counsel for the OP submitted that the present complaint is barred by limitation and also hit by principle of res-judicata in the face of order dated 26-07-2019 passed in Consumer Commission bearing no.95/2014 by the District Commission, Sirmaur At Nahan (H.P.).  He further submitted that he OP has already purchased the specially customized lenses from the Supplier-Delhi Eyezone Pvt. Ltd. vide retail invoice dated 13.07.2013, Annexure R-8, on making payment of Rs.64,050/- against the initial payment of Rs.48,000/- deposited by the complainant. Thus the OP incurred a sum of Rs.16,050/- from his own pocket as the cost of lenses, which the complainant failed to pay despite repeated calls and requests, as such, the complainant is not entitled for any refund and the complaint filed by the complainant is liable to be dismissed with special costs.
8.           First coming to the submission of the learned counsel for the OP that this complaint is barred by limitation and also hit by principle of res-judicata in the face of  order dated 26-07-2019 passed in Consumer Commission bearing no.95/2014 by the District Commission, Sirmaur At Nahan (H.P.), it may be stated here that because the complainant had already filed the  said consumer complaint before the District Commission, Nahan in the year 2014 which was ultimately returned to the complainant for want of territorial jurisdiction vide order dated 26.07.2019 with liberty to the complainant to file the same before the appropriate Commission/Forum, as such, the time spent by the complainant before the  District Commission, Sirmaur At Nahan (H.P.) in a bonafide manner while pursing the said complaint, did not attract the objection of limitation in view of ratio of law laid down by the Hon’ble Supreme Court in Laxmi Srinivasa R And P Boiled Rice Mill vs State Of Andhra Pradesh | 2022 LiveLaw (SC) 964, wherein it was held that  period spent before any court in a bonafide manner is within  the condonable period.  Furthermore, if we exclude the period from 15.03.2020, till 22.02.2021, in view of the order passed by the Hon’ble Supreme Court of India in Miscellaneous application No.21 of 2022 and Others in Suo Moto Writ Petition (C) No.3 of 2020, this complaint in no manner can be set to be barred by limitation. Moreso,  this complaint is also not hit by the principles of res-judicata as the matter was not decided on merits by the District Commission, Sirmaur At Nahan (H.P.), and simply returned for filing it before appropriate fora. In this view of the matter we do not find any force in the submission of the learned counsel for the OP, hence, rejected.
9.           Now coming to the merits of this case, It may be stated here that since the fact with regard to payment of Rs.48,000/- by the complainant for the said surgery to the OP; the complainant later on opted not to get the said surgery done; not even a single penny has been returned to the complainant by the OP are not in dispute, as such, the only question which falls for consideration is, as to whether, the complainant is entitled to get the refund of any amount from the OP and if yes to what extent.
10.           It is significant to mention here that, though the OP in the written version filed in the present case, did not state even a single word regarding refund of partial amount in respect of the said lenses by the Supplier-Delhi Eyezone Pvt. Ltd. from which he has purchased the same for complainant yet,  it is coming out from the contents of written version noted by the Learned District Commission, Sirmaur At Nahan (H.P.) in the order dated 26.07.2019, Annexure R-9 (CC No.95 of 2014, titled as Sidharth Vs. Dr. P.C.Sharma, Eye Hospital, Ambala City) by which the Learned District Commission, Sirmaur dismissed the said complaint for want of territorial jurisdiction, that the OP had candidly admitted with regard to receipt of partial refund of Rs.18,500/- from the Supplier-Delhi Eyezone Pvt. Ltd. vide credit  voucher dated 23.12.2014 and also stated that the OP is ready to pay the amount of Rs.24,050/- after adjustments out of Rs.48,000/. This order dated 26.07.2019, Annexure R-9 has been placed on record by the OP himself. Thus, in our considered opinion, when neither the OP has done any surgery of the complainant nor had provided any services with regard to the same and on the other hand, the OP was ready to make payment of Rs.24,050/- to the complainant, as such, in the interest of justice and fair play, it is held that the complainant is entitled to get refund of the said amount of Rs.24,050/- from the OP. Since, the amount was retained by the OP since 23.12.2014, thereby causing mental agony, harassment and financial loss to the complainant as such, he needs to be compensated.
11.           In view of the aforesaid discussion, we hereby partly allow the present complaint and direct the OP, in the following manner:-

1. To refund the amount of Rs.24,050/- to the complainant, alongwith interest @4% p.a. from 23.12.2014 onwards.
2. To pay Rs.3,000/- as compensation for the mental agony and physical harassment suffered by the complainant.
3. To pay Rs.2,000/- as litigation expenses.

 

The OP is further directed to comply with the aforesaid directions within the period of 45 days from the date of receipt of the certified copy of this order, failing which the OP shall pay interest @6% per annum on the awarded amount, for the period of default, till realization. Certified copies of the order be sent to the parties concerned as per rules.File be annexed and consigned to the record room.

Announced:- 01.03.2023.

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President