Chandigarh

DF-I

CC/365/2016

Grant David Alexander Lewis - Complainant(s)

Versus

Reviva Clinic - Opp.Party(s)

Saurabh Dalal

11 Dec 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

 

 

                               

Consumer Complaint No.	:	CC/365/2016
Date of Institution	:	09/05/2016 23/05/2016
Date of Decision	:	11/12/2018

 

Grant David Alexander Lewis s/o Graeme Lewis r/o #5, Jassa Street, Bentleigh, Melbourne, Victoria 3165, Australia.

… Complainant

V E R S U S

Reviva Clinic – Chandigarh, SCO 1-2-3, 1^st Floor, Opposite Hotel Park Plaza, Sector 17-D, Chandigarh, through Dr. Prabdeep Sohi, Medical Director.

… Opposite Party

 

CORAM :	SHRI RATTAN SINGH THAKUR	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

                                                                    

ARGUED BY	:	Sh. Saurabh Dalal, Counsel for complainant
	:	Sh. Amit Aggarwal, Counsel for OP.

 

Per Rattan Singh Thakur, President

1.         The long and short of the allegations are, complainant is a resident of Australia while the OP, a clinic of international repute, provides treatment for hair loss by way of transplant among other treatments by their misleading and false promises and guarantees.  The misleading and fake promises and guarantees lures the customers to undergo treatment at its clinic and shell out lakhs of rupees. The complainant had scanty hair on his head and he decided to get treatment of hair transplant from the OP after reading its advertisement of 100% guarantee.  The complainant wanted hair growth on his head so dense so that skin of his scalp would not be visible through hair. Hence, after taking appointment, the complainant started his itinerary from Australia to Chandigarh on 24.7.2012 and reached Delhi on 25.7.2012 and thereafter Chandigarh on the same day. He spent an amount of around Rs.75,000/- for the return air ticket.

                The allegations are, treatment was started forthwith for which the complainant spent an amount of Rs.4,00,000/- as treatment charges; Rs.25,000/- for daily to and fro taxi charges for two weeks and Rs.70,000/- as hotel rental with food.  After the treatment, the complainant went back on 6.8.2012 and waited for about 7 months, but, there was no hair growth as it was still sparse and not even close to what was assured. Emails were sent and the OP on 2.5.2013 and 12.5.2014 through emails admitted its fault and promised for full hair growth without cost and offered the complainant to undergo another round of treatment vide communication dated 14.5.2014. Again the complainant came from Australia on 19.6.2014, reached Chandigarh on 20.6.2014 and underwent second round of treatment for almost two weeks and went back on 30.6.2014.  Again, there was no growth of hair and rather it caused a social stigma to the complainant as he was not able to mix up in the society and there were ill effects of the treatment.  The treatment failed and thereafter communications were sent which were not heeded to by the OP. The cause of action had arisen at Chandigarh.  Hence, the present consumer complaint and the complainant, after amendment of the consumer complaint, prayed for total sum of Rs.14,98,000/- under various heads.

2.         OP had furnished reply and, in nutshell, its claim is, consumer complaint is time barred; not maintainable as gratuitous service was done on 30.6.2014; amendment was effected of the consumer complaint which prayer had become time barred; complainant is estopped to file the present consumer complaint as he had given written consent for anesthesia and hair transplant in which it was referred that even after treatment hair may not grow. OP admitted of having received Rs.4,00,000/- as fee for treatment of hair transplant and the communications entered into inter se parties.  Further case is, complainant has failed to furnish any proof that he has come to Chandigarh to furnish the affidavit in support of the consumer complaint which has been annexed with it. Claim denied by the OP. On these lines, the cause is sought to be defended.
3.         Rejoinder was filed and averments made in the consumer complaint were reiterated.
4.         Parties led evidence by way of affidavits and documents.
5.         We have heard the learned counsels for the parties and gone through the record of the case.  After scanning the entire record, our findings are as under:-
6.         Per pleadings of the parties, the admitted facts are, in the year 2012, on the mentioned date, and in the year 2014, on the referred date, OP had performed the treatment of hair transplant on the head of the complainant which was allegedly a bald one.  It is also admitted in the pleadings, a sum of Rs.4.00 lakhs was received by the OP at the time of first procedure, which was carried for two weeks, in August, 2012. There is no dispute with regard to these facts. There is also no dispute that after entering into correspondence, OP had admitted the fault and asked the complainant to undergo second treatment on 30.6.2014 when the first treatment had failed.  These are undisputed facts on record.  Now we shall scan and refer to in the undermentioned paragraphs what conclusions could be drawn from these undisputed facts per pleadings of the parties.
7.         First of all, we shall refer to the brochure (Annexure C-6), which was uploaded on the internet by the OP highlighting the manner and mode of treatment of hair transplant and its success rate with which the complainant was allured as he was a little bit bald. The relevant portion of the brochure which was put on the internet is reproduced below :-

“Exclusive hair transplants

• No other procedure or surgery done at this centre
• 100% guaranteed results
• We take great pride in our work
• We strive to ensure patient satisfaction
• We guarantee that each grafted hair will grow out, or it will be replaced free of charge in the subsequent session.”

 

This shows, it is the commercial claim of the OP – a doctor – that with this treatment, 100% results are guaranteed. The existence or genuineness of the contents of this brochure are not in dispute by way of written statement furnished. It is not the pleading, complainant had some problem in his head in which 100% success rate could not be guaranteed. Presumably, in pre-operative surgery procedure, tests were performed and the complainant was found fit for hair transplant in which 100% guarantee was allured while receiving the amount of Rs.4.00 lakhs by the OP doctor. Though it can be taken note of, humanly devolved system is never 100% perfect so is the case with the medical system, but, the OP, for earning lucrative money, had indulged in giving 100% guarantee deceitfully. Now there is no fun with the OP to retract from this claim or say commercial claim.  Any failure to achieve 100% result definitely tantamounts to fault in service provided by the OP – allegedly a qualified internationally repute doctor in the field. 

8.         Now we shall refer to another admitted communication (Annexure C-3) and the relevant response given by the OP to the complainant dated 2.5.2014 is reproduced below :-

“Dear Sir,

I have seen your previous pics, even we fail to understand why you haven’t got the final result till now.  We are taking full responsibility for this.  Now we can offer you a complimentary session to fill all the area, or we can offer you the money back, which way you are comfortable with.

We also assure you that their will be no delay in email response in future. 

Warm regards and hope to hear from your side soon.

Dr. Sohi.”

The contents of the aforesaid communique addressed by the OP to the complainant further shows and leads to the irresistible conclusion, it was lacking in perfect service or say there was fault in its service and, therefore, the OP had offered a complimentary session and to fill all the area or offered to give the money back.  This shows, more or less, as on 2.5.2014, deficiency was admitted one i.e. to say fault, imperfection, shortcoming which was otherwise undertaken to be performed by the OP by way of advertisement and uploaded the brochure guaranteeing 100% success rate in such like matters. Therefore, the deficiency in service in the year 2014 was admitted.

9.         The pleadings and evidence led in the form of affidavits and photographs (Annexure C-5) reflects, even after second procedure performed in the year 2014, hair did not grow as was assured.  This fact is evident from the photographs (Annexure C-5).  Even otherwise, as per pleadings made by the OP in the written statement, it is not their claim or say assertion that the hair did grow 100% as per their promise.  Therefore, 100% success rate guarantee was given and hair did not grow as per assertion and the photographic evidence (Annexure C-5) alongwith the affidavit of the complainant shows, OP was negligent in the performance of such medical procedure.  Otherwise, the success rate of 100% was not likely to fail.
10.         A perusal of the assertions made in the written statement shows, the present consumer complaint is sought to be defended more or less on legal and technical grounds.  The grounds are, the consumer complaint is time barred as the first procedure was done on 2.8.2012 while the instant consumer complaint was filed on 9.5.2016 i.e. to say beyond the period of two years prescribed under the Consumer Protection Act, 1986.
11.         We have pondered over this contention and we record a finding, as per record, that this treatment lasted till 30.6.2014 when the second procedure was done. It was in continuation of the first procedure and the offer was given by the OP either to undergo second surgery or to take the money back, but, the complainant had opted for the first one and from these pleadings and admitted facts, we say that the complainant has a continuing cause of action which continued even onwards 30.6.2014 when the second procedure or say hair transplant was done by the complainant and the cause of action has arisen when the hair did not grow in the second procedure afterwards June 2014 while the consumer complaint was filed before the Hon’ble State Commission, UT, Chandigarh on 9.5.2016 i.e. to say within two years from the date of cause of action. It was continuing cause of action. To this effect we have no manner of doubt to hold this consumer complaint having not been filed within the time prescribed under law. 
12.         The contention of the learned counsel for the OP is, the second procedure was done gratuitously i.e. without consideration on 30.6.2014, therefore, the complainant is not a consumer.  We have already referred in the foregoing paragraphs, OP had admitted its fault and allured the complainant for the second procedure.  It is in continuation of the first procedure of 2012 and this was a continuing cause of action and the payment received in 2012 of Rs.4.00 lakhs was of both the procedures – first and second – as even in 2014, OP was ready to refund the amount of Rs.4.00 lakhs to the complainant.  In this situation, we cannot hold the second procedure was without consideration.  It was with consideration of Rs.4.00 lakhs which was initially received by the OP for the hair transplant.  We find no force in the contention raised. 
13.         The next attack of the learned counsel for the OP is, initially the consumer complaint was filed before the Hon’ble State Commission, UT, Chandigarh wherein claim of more than Rs.30.00 lakhs was preferred, but, it was not found so by the Hon’ble State Commission and later on the present consumer complaint was entertained before this Forum.  A copy of the order dated 18.5.2016 passed in Complaint No.196 of 2016 is on record and thereafter the application was moved for amendment of relief clause  confining the total claim to Rs.14,98,000/-.  Only relief clause was amended and claim amount was reduced.  It does not mean that the initial claim of the complainant had become time barred as it is with regard to the amount quantified in the relief clause.  Therefore, the amendment had not become time barred as it was confining to reduction in the claim amount and the body of averments made in the consumer complaint and the cause of action were not changed.  Hence, we find no force in the contention raised by the OP.
14.         Another contention of the learned counsel for the OP is, before undertaking the surgeries i.e. to say hair transplant in the year 2012 and 2014, consent memos (Annexure R-2 & R-3) were signed by the complainant in which there was a reference that as a result of surgical procedure or treatment it is not possible to guarantee a successful result or to assure an outcome that will meet his goals and expectation or satisfaction.  It is a consent memo signed in the relationship of a doctor and patient at the operation table where the patient is always under influence of a doctor and his fear while the contra claim as has been referred supra by way of advertisement and brochure uploaded on the internet (Annexure C-6) had assured the complainant with 100% success rate and it was guaranteed.  Now a somersault was taken by the OP just to defend itself or deceive the complainant on the operation table itself that it is not possible to guarantee a successful result.  This consent form is under pressure and it cannot be used in this situation reading in combination with the guarantee brochure (Annexure C-6) as referred by us in the foregoing paragraphs. In this particular situation and the record, consent letters will not come to the rescue of the OP – a qualified internationally famed doctor in the field. 
15.         Per this record, it was a hair transplant with 100% guarantee of success and it is not viewed on the parameter of standards laid for the medical negligence. Reasons are, complainant was not suffering from a disease which required treatment.  Rather it was a cosmetic hair transplant with 100% success rate as was assured by the OP. 
16.         The learned counsel for the OP relied on Lt. Col. (Retd.) J.S. Ahluwalia Vs. Fortis Hospital, 2018 (1) CPJ 178, and the relevant portion of the same reads as under :-

“Consumer Protection Act, 1986 Sections 24A and 17 Limitation – Medical Negligence – Alleged defect came to the knowledge of complainant in August, 2011 at the time of removal of stitches – Hence, filing of the complaint in the year 2016 by the complainant by not taking follow up treatment, thereafter makes it clear that complaint is barred by time having been filed after more than two years from commencement or cause of action in August 2011.”

 

This case stands on a different footing as the treatment was in continuity and even in 2014 there was a continuing cause of action.        

17.         The learned counsel for the OP further relied on V.N. Shrikhande Vs. Anita Sena Fernandes, 2011 (1) SCC 53 and the relevant headnote reads as under :-

“Consumer Protection Act, 1986, Sections 24A and 17 – Medical negligence – Doctor conducting operation of stomach of patient in 1993 – Patient felt constant pain for 9 years – Second operation conducted in 2002 – Pieces of gauges found in stomach during second operation – Complaint filed against the doctor in 2004 – Held, complaint was barred by limitation which is 2 years.”

However, the present case is not time barred as time and again guarantee was given, even in the year 2012 and 2014 and even refund was offered in the year 2014.

18.         Further the counsel for the OP has relied on Arun Mishra Vs. Dr. Shreeekant Giri, 2017 (1) CPR 38, qua damage to the intestine wherein the consent memo was pressed into service.  In the relied on case, no 100% guarantee of success rate was given, therefore, the relied on precedent is clearly distinguishable from the facts of the present case which is purely with regard to hair transplant which is not a treatment of disease, but, a sort of cosmetic matter as the complainant was feeling of he being bald and people mocked at him in the society as and when he mixed with them. The present case is on altogether different footing.
19.         Now coming to the question of quantification of compensation, we are of the view that for the purpose of quantification of compensation, global yardstick is to be followed to restore mental and physical harassment alongwith monetary loss caused to the complainant and it cannot be awarded in the manner, as referred, for mental sentiment hurt and the OP is only liable for loss it has caused by way of deficiency in service and negligence. 
20.         In view of the above discussion we hold, it is a case of gross deficiency and negligence on the part of the OP. As such, the present consumer complaint deserves to succeed and the same is accordingly partly allowed. The OP is directed as under:-

1. To immediately refund the amount of Rs.4.00 lakhs charged from the complainant alongwith interest @ 9% per annum from the date of receipt till realization.
2. To pay global compensation Rs.6.00 lakhs to the complainant for deficiency in service and negligence resulting in mental agony and harassment to him. This amount also includes the expenses twice borne by the complainant towards airfare, hotel accommodation and taxi charges etc.;
3. To pay to the complainant Rs.65,000/- as costs of litigation.

21.         This order be complied with by the OP within thirty days from the date of receipt of its certified copy, failing which, it shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
22.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-	Sd/-
11/12/2018	[Suresh Kumar Sardana]	[Surjeet Kaur]	[Rattan Singh Thakur]
hg	Member	Member	President