Haryana

StateCommission

A/271/2015

CRYOBANKS INTERNATINAL INDIA PVT.LTD. - Complainant(s)

Versus

SANDEEP GARG AND ANOTHER - Opp.Party(s)

B.S.TAUNQUE

18 Mar 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      271 of 2015

Date of Institution:      24.03.2015

Date of Decision :       18.03.2016

 

1.     Cryobanks International India Private Limited having its registered office at F-2/7, Okhla, Industrial Area Phase-I, New Delhi-110020.

 

2.      Vipul Shah (Cryobank Sales Representative), Cryobanks International India, Private Limited 129-Pace City-I, Sector 37, Gurgaon, Haryana.

 

3.      Anil Hota (Cryobank Sales Representative), International India, Private Limited 129-Pace City-I, Sector 37, Gurgaon, Haryana.

 

Appellants/Opposite Parties

Versus

1.      Sandeep Garg

2.      Nisha Garg w/o Sh. Sandeep Garg

Both Residents of House No.285/10, Tadan Gate, near Talai Bazar, Kaithal.

                                      Respondents/Complainants

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member   

 

Present:               Shri B.S. Taunque, Advocate for appellants.

                             Shri K.L. Saini, Advocate for respondents.

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

Opposite Parties are in appeal against the order dated February 23^rd, 2015, passed by District Consumer Disputes Redressal Forum, Kaithal (for short ‘the District Forum’) in Complaint No.110 of 2014.

2.      Sandeep Garg and Nisha Garg-Complainants/respondents, filed complaint under Section 12 of the Consumer Protection Act, 1986, alleging that representatives of Cryobanks International India Private Limited-Opposite Party No.1 (appellant), approached them with an offer of storage of Umbilical Cord Blood Stem Cells. The Opposite Party No.2- Vipul Shah, visited the complainant for demo and gave details of Stem Cell Storage and its superiority over other  company called “Life Cell”. It was stated that the opposite parties have network and facility of collecting the sample at different places including at Kaithal, where delivery of complainant No.2-Nisha Garg, was expected. Opposite Party No.2 later offered that if the complainants signed the agreement, on that day, i.e. 26.01.2014 the opposite parties would provide five years free facility i.e. by paying for 21 years, storage would be available for 26 years. The concessional rate was only 45,000/-.

3.      On the said persuasion, the complainants signed the agreement on that day, that is, 26.01.2014. The complainants were provided with a kit which has to be carried at the time of delivery. It was stated that para medical staff of the opposite parties would reach the clinic where the complainant No.2 was expected to have delivery. On relevant date, that is, 28.02.2014, the complainants contacted opposite party No.2 at 7:30 P.M. and requested to depute their para medical staff to reach at the appointed Nursing Home. Despite assurance that the person would reach within 30 minutes, none reached till 10:15 P.M. The complainant No.2 being in full labour pains and Doctor insisting for urgent delivery and there being a limited time for taking the sample and not-reaching person from the opposite parties, the sample could not be taken and preserved. This frustrated the entire purpose. Thus, alleging deficiency in service, complaint was filed.

4.      The opposite parties contested the complaint by filing reply raising objection regarding jurisdiction. Plea of arbitration clause and ouster clause were also raised. It was stated that in the agreement governing the parties it provided for sample to be taken by Gynaecologist and not by para medical staff of the opposite parties. Rest of the allegations were denied.

5.      On appraisal of the pleadings and evidence of the parties, the District Forum allowed the complaint granting relief to the complainants as under:-

“……..we allow the complaint and directed the Ops to refund the amount of Rs.50,000/- along with interest @ 8% p.a. from the date of deposit of said amount i.e. 26.01.2014 and further to pay Rs.2,00,000/- (two lacs) on account of lump sum compensation for harassment, mental agony and cost of litigation charges. All the ops are jointly and severally liable. Let the order be complied within 30 days, failing which, the complainants shall be entitled interest @ 8% on the awarded compensation from the date of commencement of order till its realisation.”

6.      Learned counsel for the appellants/opposite parties only referred to Clauses of the agreement. Opening argument is that the District Forum, Kaithal, has no jurisdiction to entertain and decide the complaint.

7.      Section 11 (2) of the Consumer Protection Act, 1986 reads as under:

11.    Jurisdiction of the District Forum.—(1) xxx. 

 

(2)     A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,—

(a)     the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or

(b)     any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or

(c)     the cause of action, wholly or in part, arises”. 

 8.     In the agreement (Annexure A/2), the address of the complainants is of Kaithal. The delivery took place at Kaithal. The appellants/opposite parties do not deny that delivery was not to take place at Kaithal. Therefore, certainly the cause of action arose at Kaithal. No cause of action or part of cause of action had arisen at Gurgaon. Therefore, certainly, the District Forum, Gurgaon lacks territorial jurisdiction to decide the complaint and proper forum was certainly of Kaithal.

9.      Further referring to the agreement, learned counsel for the appellants has argued that it was the duty of the Gynaecologist to take the sample and the Kit had already been provided to the complainants.

10.    It is not disputed that the Umbilical Cord Blood Stem Cells have to be taken immediately at the time of delivery and if that time is lost, the purpose of preserving the life cell is frustrated. The complainants have specifically stated that despite intimation, none reached and rather a call was received at 10:40 P.M. that a person was still to start from Panipat. Complainant-Nisha Garg, was in distress by then. That the opposite parties were informed well in advance, that is, before the date of delivery. The opposite parties have placed on the file the affidavit (Annexure A/6) of one of the officials namely Deepak Gahiyan. Even this affidavit is of no help to the appellants. Though, no such affidavit was filed before the District Forum, yet even this official in his affidavit (Annexure A/6) admits the calls being made by the complainants and also admits that when he received the call, he was yet to start from Panipat.

11.    Though, the affidavit appears to be only an eye wash, yet even if it is considered that the person was still to start from Panipat and the complainant-Nisha Garg being in distress by then, could not have waited for the officials to reach before the doctor starts for delivery. Therefore, the opposite parties have been proved deficient in service.

12.    However, it has been stated that at the time of execution of the agreement, the complainants had paid only Rs.15,000/- besides having issued post dated cheques. The complainant who was present in person admitted that the cheques had not been got encashed by the opposite parties. The District Forum in its order, besides compensation has also ordered for refund of Rs.50,000/- deposited by the complainants. The complainants had actually deposited Rs.15,000/-, therefore, the order need to be modified only to the extent that under the heading of refund of the amount deposited, the opposite parties would only refund Rs.15,000/- paid by the complainants. Rest of the order is upheld.

13.    The impugned order is modified in the manner indicated above and the appeal stands disposed of.

14.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the complainants against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

Announced 18.03.2016

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

CL