Delhi

North East

CC/98/2015

Mukesh Kr. Tomar - Complainant(s)

Versus

The Manager Dr. Lal Path Lab - Opp.Party(s)

05 Jun 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 98/15

 

In the matter of:

 

	Mukesh Kumar Tomer R/o E-536/A Prem Gali No.4, East Babarpur, Shahdara, Delhi-110032.	Complainant
	Versus
	The Manager Dr. Lal Path Lab Shop No.9, Shri Durga Mandir Market, B/85, Jyoti Colony, main Durgapuri Chowk, Delhi-110032. Also at:- Dr. Lal Path Lab 54 Eskay House, Hanuman Road, New Delhi.	Opposite Party

 

DATE OF INSTITUTION:         JUDGMENT RESERVED ON:               DATE OF DECISION      :

20.03.2015 29.05.2018 05.06.2018

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Briefly stated, the grievance of the complainant in the present complaint stems from the complainant availing service of OP lab for blood and urine test of his wife on medical advice of lady doctor of Sugandha Nursing Home under whom she was in treatment. The said test were got done by the complainant of his wife in OP lab on 28.02.2015 at 11:06:22 Hours. The complainant was assured that the reports would be available the same day by evening. However when complainant reached OP at 8:15 PM, he found the OP lab shut despite the shutting down time for the evening written as 8:30PM on the shutter of the OP lab. The complainant contacted the OP on the mobile number given on the receipt / bill around 8:17-8:18PM but it was engaged and when the call went through the OP staff asked the complainant to visit the next day at 8:00 AM to collect the report. However, on the next day i.e. 01.03.2015, when the complainant reached the OP at 8:00 AM, he found the lab shut again and the its number switched off. Finally the complainant had to go a cyber café and download the report on 02.03.2015 at around 12:00 PM as the doctor refused to see his wife without the requisite blood and urine test reports. The complainant sent a consumer notice to OP on 03.03.2015 asking the OP to send the said report within 7 days to his residence and to pay Rs. 2,000/- as damages but the OP has not handed over the original report till date for which reason, the treatment of his wife also got delayed therefore the complainant has filed the present complaint praying for appropriate order by this Forum against the OP and directions to OP compensate the complainant for damages.

Complainant has annexed the copy of Doctors prescriptions dated 27.02.2015 with respect to the wife of the complainant, copy of invoice cash receipt no. 1391772 of Rs. 420/- dated 28.02.2015 issue by OP to the complainant for urine and blood test of Mrs. Aarti Rani, w/o the complainant, copy of consumer notice dated 03.03.2015 with postal receipts, photographs of shutter of OP showing the working hours / timings of OP lab, call register record of calls made on 28.02.2015. The complainant also filed the authorization letter issued by his wife Arti Rani in his favour to pursue the present complaint on her behalf.

2. Notice was issued to the OP which entered appearance and filed written statement on 10.12.2015. OP took the preliminary objection that the complainant was not a consumer as the test was conducted of one Mrs. Arti Rani and no authorization or power of attorney has been filed by the complainant from her. The OP took the defence that there was no occasion to supply the test report to the complainant since he never came to OP lab to collect the test report and further urged that the OP had never refused to supply the test report to the complainant and would have provided the test report if he had sought the same at its usual working hours. The OP took the defence that there was no deficiency of service since the complainant was always aware of the fact that the report was available over the internet and could be downloaded and the complainant visited the collection centre of OP either during late hours or evening or early morning to somehow show that the representative of OP were not available for handing over the report, not admitting that the complainant ever visited the OP for collection of report at all. The OP further urged that the complainant was inconsistent in his pleadings in the complaint and the notice dated 03.03.2015 and that the services of OP were limited in scope of a pathology lab, reports of test of which conducted therein are available for collection in the evening and can be downloaded from its website where reports are uploaded. The OP denied that the complainant ever visited the OP lab on 28.02.2015 at 8:15 PM and stated that even assuming that it was closed, it did not preclude the complainant from downloading the test report from the website of OP or collecting it during working hours of OP.  The OP further denied that the complainant visited its lab on 01.03.2015 at 8:00 AM and stated that if the report was so urgent, the complainant could have downloaded the same from the internet, which he eventually did on 02.03.2015. The OP further took the defence that the delay on the part of the complainant to download the test report does not in any circumstance show that there was negligence in services rendered by the OP. Lastly the OP took the defence that the OP is not obligated to send the test report at the residence of the complainant and was neither responsible for any alleged delay in commencement of treatment of the wife of the complainant.
3. Rejoinder to the written statement was filed by the complainant in which he rebutted the defence of the OP by stating that he faced hardship and mental stress due to wrongful act of OP which neglected its responsibility by not providing the report to the complainant and therefore the complaint was maintainable and according to law. The complainant further submitted that he has been duly authorized by his wife to file and contest the present complaint. The complainant further rebutted the allegation of OP that he never visited the OP lab to collect the test reports and submitted that he visited OP several times but found it shut even on its usual working hours in morning as well as evening and the staff of OP did not answer the calls of the complainant. Therefore the complainant was forced to collect the report from cyber café when the original report was not provided by the OP as the complainant initially had no knowledge about the system of download of any such type of report, regardless of which the OP was duty bound to provide the original report to the complainant as the complainant has paid the charges for the same. The complainant submitted that the OP despite being service provider did not provide service to its consumer which it was obligated to perform by way of sending the test report at the residence of the complainant.
4. Evidence by way of affidavit was filed by the complainant exhibiting the doctor’s prescription dated 27.02.2015, invoice cum cash receipt of OP for the test conducted of complainant’s wife, copy of consumer notice dated 03.03.2015 with postal receipts, photographs of shutter of OP showing the working hours / timings of OP lab, call register record of calls made on 28.02.2015.

Evidence by way of affidavit was filed by the OP sworn by Gaurav Arora, Manager Legal of OP reiterating its defence in the written statement.

5. Written argument were filed by the complainant reiterating his grievance of non supply of test report by the OP despite several visits which has caused physical and mental hardship to the complainant giving rise to the present complaint.
6. Written arguments were filed by the OP in which the OP raised the first argument of non maintainability of complaint in absence of authorization in favour of the complainant by his wife to pursue the present complaint and relied upon the judgment passed by Hon’ble NCDRC in Amita Sharma Vs BHEL and Ors II (2013) CPJ 505 (NC) in which the Hon’ble NCDRC held that since in the complaint it is nowhere pleaded that petitioner had been authorized by her husband to file the complaint on his behalf, Amita Sharma was not a consumer and complaint filed by her was not maintainable and the above said judgment was also relied upon in the matter of Ram Nivas Soni Vs Vaish Model Senior Sec School and Ors II (2013) CPJ 396 (NC) which held that complaint filed without authorization was not maintainable. The OP further argued that it was not obligated to respond to frivolous demand of the complainant for delivery of report to his residence as asked by him in his notice dated 03.03.2015. The OP further argued that there was no occasion for the OP to supply the report to the complainant in view of the fact that the same was uploaded on its website on 28.02.2015 itself which the complainant could have downloaded on that day and it is inexplicable as to why the complainant waited for three days to download the report which was readily available to the complainant on 28.02.2015 itself and therefore there was no alleged inconvenience, acts of omission and commission or deficiency of service caused to complainant on the part of OP. The OP further argued that the allegation of the complainant of having visited the OP lab at 8:15 PM on 28.02.2015 and 8:00AM on 01.03.2015 is false, frivolous and baseless and the photograph palced on record by the complainant by no means demonstrate that the lab reffered therein was that of the OP or that the complainant was presnt at such times given nor do the phone calls support any allegation of complainant having contacted emplioyee of OP. the OP relied upon the judgment of Hon’ble Apex Court in Interglobe Aviation Ltd Vs N Satchidanand (2011) 7 SCC 463 where in t supreme court helf that mere inconveneance caused to a person is not enough ti file claim for deficiency of service under CPA and the complainant has to show willful fault or negligence which the OP in the present case has argued that the complainant has failed to establish. The OP further argued that the delivery of report to the consumer is not within the scope of its services and it was never obligated to deliver the report to the residence of the complainant and it was the failure on the part of the complainant instead in collecting the report during working hours of the OP lab. The OP further argued that the complainant failed to approached the OP lab during its working hours and denied not having conducted any business on 28.02.2015 and 01.03.2015 or shut down its lab to deprive the complainant of the report. The OP further argued that the complainant deliberately chose to visit the OP lab at such hours to show that the OP was not handing the report. The OP also pointed out that there was no mention by  the complainant of the attempt made by him to collect the report on 01.03.2015 at 8:00 AM in the notice dated 03.03.2015 and stated that the complaint has been filed by the complainant to coerce the OP to submit to his unreasonable demands. The OP argue that nothing precluded the complainant from downloading the report from the website of OP which he belatedly did and in the absence of documents to support allegation of deficiency of service, no liability can be fastened on the OP. In this regard OP placed reliance on judgment of Hon’ble NCDRC in Beechins Creations Pvt Vs T.M.A International Airlines IV (2005) CPJ 186 (NC) in which the Hon’ble National Commission held that where the alleged deficiency does not result in any loss / damage to the complainant, the complaint must fail. The OP also placed reliance upon the landmark judgment of Hon’ble Supreme Court titled Ravneet Singh Bagga vs KLM Royal Dutch Airlines (2000) 1 SCC 66  wherein the Hon’ble Supreme Court observed that burden of proving deficiency of service is upon the person alleging it. The OP in light of the arguments forwarded and judgment cited prayed for dismissal of the complaint.
7. We have heard the rival contentions of both the parties and have thoroughly scrutinized the documentary evidence placed on record. The letter of authorization given by the wife of the complainant in his favour negates the first defence of the OP of non maintainability of the present complaint on grounds of non authorization.

As regards merits of the case, it is not in dispute that the complainant had got the blood and urine test of his wife conducted at the lab of OP on 28.02.2015 for which the complainant had paid a sum of Rs. 420/- to the OP towards the test. However the dispute arose on the non supply of the test report by the OP as contended / alleged by the OP giving rise to the present complaint. On keen scrutiny of the documents, particularly the invoice cum cash receipt, on the foot note of the same it is clearly mentioned that “PLEASE VISIT OUR WEBSITE TO DOWNLOAD THE REPORT WWW.LALPATHLABS.COM”.               

The complainant was in possession of the said receipt / invoice and therefore he cannot take the defence that he was not aware of the policy of the OP that the reports could be downloaded from the internet site of the OP. Nowhere in that receipt is the provision of home delivery of reports by OP. Further, we are in an agreement with the OP that the complainant has not been able to establish his presence in the OP lab during its regular working / operation hoursWe therefore do not find any force/merit in the complaint of the complainant that he was visiting OP lab time and again to get the test report of his wife only to find the OP lab shut but still did not avail of the internet facility of downloading the report giving the alleged urgency of the said test reports as made out by the complainant for starting treatment of his wife which he has blamed the OP for delay.

In light of the documentary evidence placed on record and the judgments of the Hon’ble Supreme Court and National Commission which have settled the law point on the issue of negligence, burden of proof, no deficiency of service or negligence resulting in any loss or damage to the complainant at the hands of the OP is made out in the present case. Complaint is therefore dismissed as devoid of merits with no order as to costs. The complainant is however warned to refrain from indulging in such frivolous litigation.

8.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
9.   File be consigned to record room.
10.   Announced on 05.06.2018 

 

(N.K. Sharma)     President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member