This complaint is filed by the Complainant u/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OP as the OP did not take any step to refund a sum of Rs.3,910/- to her till filing of this complaint.
It is pertinent to mention that though MA 01/2020 was disposed of on 05.03.2020, but due to inadvertence the subsequent daily order sheets were generated under MA 01/2020.
The brief fact of the case of the Complainant is that as per the recommendation of Dr. Jishnu Banerjee for some pathological tests the husband of the Complainant booked few pathological tests along with urine test through the OP and accordingly the representative of the OP namely Mr. Sumanta Kakshit visited the residence of the Complainant on 17th July, 2019 for collecting the blood sample. The husband of the Complainant had received the reports of those pathological tests on the same day at evening through an e-mail from Genu Path Labs. From the test report it was evident that the reading of creatinine was at 7.1 mg/dl, which was higher than the normal. The husband of the Complainant had immediately contacted the concerned doctor and confirmed the reports. Discussing had been made pertaining to the reports. The doctor became shocked with the report of the creatinine and immediately the doctor advised for re-checking the creatinine test from any other laboratory. On the next day rechecking of creatinine level was made at Lakhotia Diagnostic Service Private Limited. From the said report it was evident that the creatinine level was at 0.6 mg/dl, which was within normal range. Upon receipt of the subsequent report the Complainant contacted with the OP but did not get any proper or satisfactory reply for such difference/or discrepancy in the report relating the creatinine level. Thereafter on behalf of the OP Mr. Pratham Chakraborty had contacted with the Complainant and after taking the update he assured for re-checking on the next day. On the next day Mr. Chakraborty had confirmed that the report of the OP (earlier report) of creatinine is OK. Thereafter the Complainant visited the concerned doctor, who after going through the both reports had confirmed that the report of the Genu Path Labs is not correct and advised the Complainant for repeat check from a reputed Pathological Laboratory. On the next date re-checking was made from Tribedi & Roy Diagnostic Laboratory, where the result came as .61 mg/100 ml, which was within normal range and almost same as the reading of Lakhotia Diagnostic Service Private Limited. Then the Complainant requested the OP for refund of the expenditure made for conducting the pathological test as well as compensation by issuing letter dated 23.07.2019. It is stated in the petition of complaint that as the husband of the Complainant was seriously engaged with this affairs, the Company-Employer of her husband had issued show cause notice due to absence in his office. Due to preparation of an erroneous report by the OP the Complainant had to suffer from mental agony and pain as the report of the OP had indicated the symptom of renal failure. As the OP did not take any step to redress the grievance of the Complainant till filing of this complaint, hence finding no other alternative the Complainant has approached before this Ld. Commission by filing this complaint praying for direction upon the OP to refund an amount of Rs.3,910/- towards the charge of the pathological tests, to pay compensation to the tune of Rs.3,00,000/- and litigation cost of Rs.10,000/- to her.
The petition of complaint has been contested by the OP by filing written version contending that the OP is in the business of running a digital healthcare platform known as www.sastasundar.com which acts as a bridge between the potential users and service providers. The OP is/was never in the business of conducting any diagnostic or pathological tests. The OP being not a service provider did not charge any consideration from the Complainant. For this reason the Complainant cannot be considered as a consumer of the OP as the Complainant did not pay any consideration to the OP for conducting any pathological and urine test. In the paragraph no-3 of the petition of complaint the Complainant has accepted that pathological tests was conducted by the Genu Path Lab and the relevant document has also been annexed by the Complainant along with this complaint. The complainant did not file any scrap of paper from where it will be evident that she paid consideration amount to this OP for conducting the pathological tests. Therefore as the OP is no way connected with the instant allegation the complaint is not maintainable in the eye of Consumer Protection Act and the Complainant is not a consumer of the OP. As the Complainant has filed the instant frivolous complaint, hence prayer is made by the OP for dismissal of the complaint with exemplary cost.
The record speaks that on 05.03.2020 the MA being no-01/2020 filed by the OP challenging the maintainability of the complaint was heard in presence of both parties. This Ld. Commission was pleased to dismiss the said MA on contest without any cost giving opportunity to the Complainant to make Genupath Lab as a necessary party to this proceeding with a view to avoid future complication. Next date was given on 25.03.2020 for taking steps by the Complainant. But due to lockdown declared by the Government of India as well as the Government of West Bengal on account of severe out breaking of Corona Virus the record could not be placed before the Ld. Bench. After opening of this Ld. Commission this record was placed on 02.07.2020 when none was present. As such direction was given to the office of this Ld. Commission for giving information to the both parties. Next date was given on 13.08.2020. As no step was taken by the Complainant on the said date in the interest of Natural Justice further date was given on 11.01.2021. On the said date also the Complainant remained absent without taking any step. The Ld. Counsel for the OP was present. On the said date the Complainant was directed to show cause as to why the complaint shall not dismissed for default. Next date was fixed on 05.04.2021 and on the said date the Complainant remained absent as usual. For this reason the Ld. Commission was pleased to pass an order that final judgment will be passed on merit considering the affidavit filed by the Complainant.
We have carefully perused the entire record and documents. It is seen by us that after adducing evidence by the Complainant on 02.12.2019 scope was given to the OP for filing questionnaire on 09.01.2020. On 09.01.2020 the OP had filed the MA being no-01/2020 with a copy to the other side. Upon receipt of the said MA this Ld. Commission was pleased to fix of the said MA on 11.02.2020. Scope was given to the Complainant for filing written objection against the said MA filed by the OP challenging the maintainability of this complaint. On 11.02.2020 an adjournment was sought for by the OP. Considering the facts time was allowed and the Ld. Commission was pleased to fix the hearing on the said MA on 05.03.2020. On 05.03.2020 in presence of both parties the said MA was heard and accordingly the MA was dismissed on contest without any cost giving liberty to the Complainant to make Genu Path Laboratory as a necessary party in this proceeding. Date was fixed on 25.03.2020 for taking steps by the Complainant regarding incorporation of the necessary party as mentioned earlier in the cause title of the complaint. It was seen by us that until and unless the said necessary party is incorporated in the cause title, the complaint cannot be adjudicated upon in a proper manner and the complaint may suffer from non-joinder of necessary party. But inspite of providing scope to the Complainant no step had been taken till 05.04.2021 for filing an application praying for incorporation of the name and address of the Genu Path Laboratory in the cause title of the complaint. As the Complainant did not take any step, the OP did not file the questionnaire. As the evidence of the Complainant is in the record, then we have no authority to dismiss the complaint for default due to her prolonged absence and non-taking of step. So we are inclined to dispose of this complaint on merit. Admittedly there is no occasion to give scope to the OP for adducing evidence as the evidence part of the Complainant is not completed and the recor shows that the Complainant is not showing her interest to complete her evidence.
The cause title of the complaint reflects that the Complainant is residing at Howrah. The documents and papers as annexed by the Complainant shows that by the Genu Path Lab the pathological tests of the Complainant was done along with urine test. The allegation of the Complainant is that the report as received by her from the Genu Path lab is wrong relating to the reading of creatinine. According to her it is on the higher side, which indicates the symptoms of renal failure. We have noticed that the address of the Genu Path Lab is 295 G.T. Road, 204 Block-A, Arihant Tower, Belurmath, Howrah. Therefore it is clear that the Complainant is residing at Howrah and the Genu Path Lab from where the tests were conducted is also situated at Howrah.
Firstly, as the Genu Path Lab has not been made a party in this complaint, we are not in a position to pass any order either in favour/or against the Genu Path Lab. Inspite of getting opportunity the Complainant did not take any step in this context. There is no iota of evidence that the instant OP and the Genu Path Lab are internally associated/or connected with each other. The documents show that for pathological tests consideration amount was paid to the Genu Path Lab, not the present OP. There is no evidence or pleading that the Genu Path Lab being the sister concern of the OPO had provided service to the Complainant, which according to the Complainant is faulty/wrong.
Secondly, in view of the Landmark judgment of the Hon’ble Supreme Court in the case of Sonic Surgical (supra), wherein It has been held by Their Lordships that the Branch Office means the Branch Office where the cause of action has arisen. In the case in hand the said observation can be implemented as the entire cause of action has arisen at Howrah on the ground that regarding allegation of the Complainant regarding faulty reading of her creatinine level has also occurred at Howrah, if for the argument of the Complainant is accepted as true for the time being that there is connection by and between the OP and Genu Path Lab. As the entire cause of action has arisen at Howrah and no of cause of action arose within the territorial jurisdiction of the Ld. Commission either wholly or in part, then having regard to the judgment of the Hon’ble Supreme Court as mentioned earlier we are of the opinion that the instant complaint is also no maintainable from the point of its territorial jurisdiction in view of the Section 11(2) of the Consumer Protection Act, 1986.
Going by the foregoing discussion hence it is ordered that the Consumer Complaint being no-74/2019 is hereby dismissed on contest being not maintainable on the point of its territorial jurisdiction. Considering the facts and circumstances there is no order as to cost. However the Complainant is at liberty to approach before the appropriate/competent Court/Commission for redressal of her grievance, if not barred otherwise.
Let plain copy of this judgment be given to the parties free of cost as per the CPR.
Dictated and corrected by
[HON'BLE MRS. Silpi Majumder]
MEMBER
