National Consumer Disputes Redressal
Genome (The Fertility Centre) vs Sonam Doma Bhutia on 15 July, 2025
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
RESERVED ON: 05.06.2025
PRONOUNCED ON: 15.07.2025
REVISION PETITION NO. 2028 OF 2019
(Against the Order dated 12.06.2019 in Appeal No. 1/2018 of the State
Commission Sikkim)
WITH
IA/14867/2019 (Stay),
IA/14868/2019 (Exemption of file typed copies of documents)
Genome (The Fertility Centre)
(A Unit of Neotia Healthcare Initiative Ltd.),
City Centre, Uttorayon,
Matigara, Siliguri
Through Mr. Rajat Sharma, Authorised Signatory ... Petitioner
Versus
Mrs. Sonam Doma Bhutia,
W/o Nanden Lachenpa,
Tathangchen, Near Tathangchen School
P.O. and P.S. Gangtok, East Sikkim ... Respondent
BEFORE:
HON'BLE AVM J RAJENDRA AVSM, VSM (Retd.), PRESIDING MEMBER
HONBLE MR. JUSTICE ANOOP KUMAR MENDIRATTA, MEMBER
For Petitioner: Mr. Sanjoy Kumar Ghosh & Ms. Rupali Ghosh, Advocates
For Respondent: Ms. Reena Rai, Advocate (VC)
JUDGMENT
AVM J. RAJENDRA, AVSM, VSM (Retd.)
1. This Revision Petition has been filed under Section 21(1)(b) of the Consumer Protection Act, 1986 (the "Act") against the State Consumer Disputes Redressal Commission, Sikkim at Gangtok („State Commission‟) Order dated 12.06.2019, in FA No. 1/2018 modified the order of the District Consumer Disputes Redressal Forum, Gangtok, East Sikkim (District Forum‟) dated 26.05.2018 in CC No. 18/2016. RP No. 2028 of 2019 Page 1 of 19
2. For the convenience, the parties are referred to as placed in the original Complaint filed before the District Forum.
3. Brief facts of the case, as per the Complainant, are that she approached the OP Fertility Centre in September 2015 for fertility treatment and deposited Rs.1,95,000, along with Rs.6,280 for injections and other incidental charges. She initially underwent an Intrauterine Insemination (IUI) procedure costing Rs.4,500, which was unsuccessful. Following this, the doctor advised her to opt for IVF treatment using a donor's egg, assuring her a 100% safe pregnancy. Accordingly, she paid Rs.1,07,000 in two instalments for In-vitro Fertilization - Egg Donor through Intra Cytoplasmic Sperm Injection IVF-ED-ICSI (egg sharing) procedure. However, the OP failed to inform her about the schedule of treatment and, only on her enquiry, she was told that a suitable donor was being located. On 05.06.2016, she was informed that no egg donor was available on a sharing basis, but a single donor was available. She then paid further Rs.88,000 on 06.06.2016. During her visit on 10.06.2016, she was prescribed a three-month course of medication, and her husband‟s semen sample was taken and frozen for IVF-ICSI. On 18.06.2016, she was informed that high quality donor eggs were procured, and further medication for 15 days was prescribed. She also paid Rs.7,000 towards the donor's medical expenses, despite such costs being included in the Rs.88,000 RP No. 2028 of 2019 Page 2 of 19 package. On 23.06.2016, a scan was conducted for Rs.200. She was later informed that out of 16 eggs, only three Grade III embryos were formed, which she could transfer at her own risk, though there was a possibility they might not develop successfully. She declined to proceed with the embryo transfer. When she enquired about a refund, she was told that only 11% of the amount would be returned, excluding Rs.7,000 used for the donor‟s treatment. No reasons for the failure were provided, and no technical reports were shared. Alleging that the OP Fertility Centre breached applicable standards of medical care, resulting in loss, harassment, and mental agony, the complainant sought a total compensation of Rs.6,10,549.
4. On being issued notice, the OP had filed its written statement wherein OP admitted to administering fertility treatments to the Complainant, during which she received four injections for egg development and underwent the Intrauterine Insemination (IUI) procedure twice on 30.12.2015 and 03.01.2016. The OP, however, contended that on 26.12.2015, the Complainant attempted one cycle of In-vitro Fertilization (IVF) using her own eggs, despite having been informed about her poor ovarian reserve and her husband‟s poor sperm quality. She was further informed of the costs of the Egg Donor (ED) and Egg Sharing Donor (ESD) packages as Rs.1,95,000 and Rs.1,07,000 respectively, by Ms. Anju Pradha, the Centre Head of OP. RP No. 2028 of 2019 Page 3 of 19 On 06.01.2016, she was informed that egg sharing was not available and was advised to opt for ED package, to which she consented and accordingly made a payment of Rs. 88,000 for the upgrade from the ESD to the ED package. Despite being repeatedly informed about the poor quality of her husband‟s sperm, the Complainant consistently insisted on using it and, of her own volition, chose not to proceed with the treatment. Therefore, the OP prayed for the dismissal of the complaint with costs, on the ground that the Complainant had voluntarily opted out of the treatment.
5. The learned District Forum vide Order dated 26.05.2018, partly allowed the complaint with the following finding:
"54. In view of the findings in issues No. 1 and 2, we find the Complainant is not entitled to the compensation claimed i.e. a sum of 6,10,549 only. Having said that we have found that when the IUI treatment failed, the Complainant had opted for the IVF ICSI treatment with an Exclusive Egg Donation Package and made the additional payment of 88,000/- (Rupees eighty eight thousand) only, vide Exbt. C/7 (1) but which treatment she did not complete. We, therefore, hereby direct the Opposite Party to refund the sum of 88,000/- only, paid by the Complainant (as additional payment) on 06.06.2016 for a Single Egg Donor Option (ED) to the Opposite Party towards expenses for further treatment undergone by the Complainant which she never completed.
55. Further, the Opposite Party is directed to refund 11% out of 1,07,000/-(Rs. one lakh and seven thousand) only, paid by the Complainant in two installments of 70,000/- only on 17.01.2016 vide Exbt. C/5 (1) and 37,000/- (Rs. thirty seven thousand) only on 08.02.2016 vide Exbt. C/5 (2) to the Opposite Party which, as submitted by the Opposite Party, is even otherwise refundable. Issues No. 3 and 4 thus decided accordingly.RP No. 2028 of 2019 Page 4 of 19
56. In the end result, this Forum directs the Opposite Party i.e. Genome (The Fertility Centre) to refund the sum of 88,000/ (Rupees eighty eight thousand) only, plus 11,770/- (Rs. eleven thousand, seven hundred and seventy) only i.e. 11% refund out of 1,07,000/- (Rs. one lakh and seven thousand) only, totalling a sum of 99,770/- (Rs. ninety nine thousand, seven hundred and seventy) only to the Complainant along with interest @ 10% per annum on the said sum, from the date of filing of the complaint i.e. 14.11.2016, till full and final payment."
6. Being aggrieved by the District Forum Order, the OP filed Appeal No.01/2018 and the State Commission vide Order dated 12.06.2019 dismissed the Appeal and set aside the Order passed by the District Forum, with the following observations:
"18. Having examined all the documents, it is apparent that although the sperm quality was not as per the required standards and absolutely did not meet with the standards prescribed by the WHO the Complainant was at no stage counselled on this premise. Instead the sperm pick up was done despite knowledge that it was of poor quality. Consequently, embryo formed was evidently not of the desired or required quality and the chances of pregnancy admittedly were low. If this be the circumstance it is indeed the option of the patient to either opt for the transfer or not. There cannot be experiments in the human body to gauge success or failure as was wont in the instant matter. The emotional and physical trauma involved for the patient ought to be weighed. Had counselling been done on all the afore- discussed aspects including poor sperm quality then the situation of poor quality embryo formation would not have arisen. In all probability other options would have been explored by the couple including refusal of initiating the treatment. The Fertility Centre has indeed been negligent and deficient in service in their failure to provide proper medical counselling before initiation of the procedure and once the procedure commenced they did not hesitate in picking up poor quality sperm which led to formation of poor embryo.RP No. 2028 of 2019 Page 5 of 19
19. Consequently, we cannot bring ourselves to agree with the findings of the Learned DCDRF who has found no negligence in the applicable standards of medical care or that Rs. 88,000/- (Rs. eighty eight thousand) only, should be refunded to the Complainant for incomplete treatment.
20. The impugned Judgment of the Learned DCDRF is set aside.
21. In view of the discussions hereinabove, it is ordered as follows;
The Fertility Centre shall refund the entire expenses incurred by the Complainant for her treatment amounting to Rs.2,36,615/- (Rupees two lakhs, thirty six thousand, six hundred and fifteen) only.
22. Appeal dismissed."
7. Dissatisfied by the Order of the State Commission, OP filed the present Revision Petition before this Commission praying:
"It is therefore most humbly prayed that this Hon'ble Commission may be pleased to admit this Revision Petition and set aside the final order dated 12/6/2019 passed by the Ld. State Consumer Disputes Redressal Commission, Sikkim at Gangtok, passed in Consumer Appeal No. 1 of 2018 and dismiss the complaint filed by the Respondent.
Award cost of this revision petition to the petitioner and against the respondent.
And may pass any further order or direction as may deem fit and proper in the circumstances of the instant case."
8. The learned counsel for the OP reiterated the submissions made in written version and the grounds advanced in the Revision Petition and argued that the treatment administered to the Complainant was neither unsuccessful nor incomplete. The Complainant had voluntarily RP No. 2028 of 2019 Page 6 of 19 chosen to discontinue the procedure midway, even though the entire course of treatment, including its risks and success probabilities were duly explained to her and her husband, who had consented to proceed with the process. He relied on the findings of the District Forum and argued that it was correct in holding that there was no negligence by the OP. However, he contended that the Forum erroneously awarded a refund of Rs.99,770 with 10% interest. He asserted that since the Complainant accepted the order without filing any Appeal, the State Commission had no jurisdiction to enhance the compensation in an Appeal filed solely by OP. He asserted that the enhancement of compensation to the Complainant to Rs.2,36,615 was illegal and unsustainable, as it was granted without any cross-appeal or additional grounds by the Complainant. He emphasized that the Complainant availed all relevant medical services, including medication, ovum retrieval, and embryo creation. Three embryos were successfully created and frozen, and the refusal to proceed with the Embryo Transfer (ET) was a voluntary choice by the Complainant. He further argued that no assurance of a 100% success rate had ever been given and that failure to conceive in itself did not imply deficiency of service. He asserted that the OP followed all standard protocols. The CRM Counselling Checklist and other records evidenced that the Complainant and her husband were duly informed about the condition RP No. 2028 of 2019 Page 7 of 19 of asthenoteratozoospermia and the blank fields in the counselling forms regarding donor sperm and surrogacy were due to her own refusal to consider those options. The learned counsel asserted that her decision to proceed with her husband‟s sperm, despite poor quality, led to formation of low-grade embryos and a reduced chance of pregnancy. These circumstances were fully disclosed and accepted by her before she discontinued the treatment. The State Commission failed to appreciate that the OP had provided all due care and followed proper medical procedure. In support, he relied on Chandigarh Nursing Home v. Sukhdeep Kaur, Civil Appeal No. 5931 of 2022. The learned counsel prayed for setting aside the impugned order of the State Commission and for restoration of the finding of the District Forum that there was no negligence or deficiency of service.
9. On the other hand, the learned counsel for the Complainant argued that the Revision Petition was devoid of merit, asserting that the order dated 12.06.2019 passed by the State Commission was based on sound reasoning. She contended that while the District Forum had initially disallowed allegations of negligence, it still awarded a partial refund. Upon appeal, the State Commission rightly re- evaluated the evidence and found the OP deficient in service for failing to ensure proper medical counselling. She argued that the order merely directed refund of treatment expenses of Rs.2,36,615 and that RP No. 2028 of 2019 Page 8 of 19 this sum did not amount to enhancement of compensation as the Complainant had originally sought a higher compensation of Rs.6,10,549. She asserted that the State Commission restricted its relief to actual treatment costs and refrained from awarding additional compensation under other heads. She argued that the Complainant was subjected to series of medical procedures, including administering of Gonal-F injections, Intrauterine Insemination (IUI) and Intra Cytoplasmic Sperm Injection (IVF-ICSI), all of which failed. She further contended that despite undergoing such intensive treatments, the Complainant was never adequately counselled regarding critical factors such as her husband‟s poor sperm morphology, which significantly reduced the probability of success. She asserted that in the final phase, the Complainant was informed that only Grade III embryos formed and was advised to proceed with embryo transfer at her own risk. She argued that such recommendation, made without full and informed disclosure, reflected a lack of medical prudence and constituted a clear breach of ethical standards expected from any fertility clinic. She referred to the Indian Medical Council (Professional Conduct, Etiquettes and Ethics) Regulations, 2002 to underline the OP‟s ethical lapses. She further relied upon Dr. Laxman Balkrishna Joshi Vs Dr. Trimbakbapu Godbole & Anr., AIR 1969 SC 128, Nizam Institute of Medical Sciences Vs Prashant S. Dhananka & RP No. 2028 of 2019 Page 9 of 19 ors, 2009 (6) SCC 1, Rogers Vs Whitaker, (1992) 67 ALJR 47 (High Court of Australia) and Tharun Thakore v. Dr. Noshir M. Shroff (OP No. 215/2000 dt 24.9.2002). She concluded that the scope of revision under Section 58(1)(b) of the Act was limited to jurisdictional errors, none of which existed in the present case and prayed that this Revision Petition be dismissed.
10. We have examined the pleading and associated documents placed on record, including the order of the learned District Forum and the learned State Commission and rendered thoughtful consideration to the arguments advanced by learned counsels for both the parties.
11. Admittedly, the Complainant approached the OP Fertility Centre, in September 2015 for fertility treatment and paid a cumulative sum of Rs.2,36,615 for Intrauterine Insemination (IUI), In-vitro Fertilisation (IVF) and associated procedures including egg donor treatment. During the final stage of treatment, she was informed that only three, Grade III embryos had formed and the option of embryo transfer was left to her discretion. She admittedly declined to proceed with the treatment citing poor embryo quality and demanded a full refund, alleging that the OP had failed to provide proper counselling regarding her husband‟s sperm quality and the risks involved. RP No. 2028 of 2019 Page 10 of 19
12. The District Forum, while rejecting the Complainant‟s allegations of negligence, nonetheless directed a partial refund of Rs.99,770. It reasoned that since the Complainant had opted for an upgraded package and had not proceeded with the treatment beyond embryo formation, the additional sum of Rs. 88,000 and 11% of Rs. 107000 should be refunded. The learned District Forum, however, clearly recorded that there was no negligence in the medical care rendered by the OP. The State Commission, in Appeal preferred solely by the OP proceeded to direct full refund of the entire amount paid, holding the OP liable on the ground that the Complainant had not been properly counselled regarding the low sperm morphology and the alternate treatment of sperm donation and noted that it found no documentation regarding the same. It noted that the OP was negligent as the "semen donation" and "surrogacy" columns were left blank in the Counselling Checklist, thereby, drawing an inference that the complainant was not counselled for the same. State Commission thus held that the OP was at fault for proceeding with poor-quality sperm, which led to formation of weak embryos.
13. OP contended that all medical protocols and informed consent procedures were duly followed. It was argued that the Complainant had been clearly counselled about the poor sperm morphology and had consciously elected to proceed with her husband‟s sperm rather RP No. 2028 of 2019 Page 11 of 19 than opt for a donor sperm. It was specifically contended that the Complainant voluntarily withdrew from the treatment midway and therefore cannot claim deficiency of service. It was further urged that the State Commission acted beyond its jurisdiction in enhancing the refund amount in an appeal filed solely by the OP. On the other hand, the Complainant asserted that the State Commission rightly appreciated the OP‟s failure to counsel the Complainant on poor sperm quality and available alternatives. It was argued that the treatment outcome was compromised due to OP‟s negligence in proceeding with the procedure despite poor-quality sperm and without effective disclosure or counselling. It was contended that the refund ordered by the State Commission merely compensated for treatment costs and did not exceed the prayer made in the original complaint.
14. Upon hearing both parties and perusal record, the issues for determination are whether the OP was negligent or was there any deficiency in service in providing fertility treatment to the Complainant, particularly in respect of counselling regarding poor sperm quality? And whether the State Commission was justified in enhancing the refund amount beyond the scope of the Appeal filed solely by the OP, in absence of a cross-appeal by the Complainant?
RP No. 2028 of 2019 Page 12 of 19
15. With respect to the allegation of negligence, the present case hinges on whether the Complainant and her husband were properly counselled regarding the poor sperm morphology and its implications, including the option of sperm donation. In this regard, the clinical records assume critical importance. The record dated 26.12.2015 states that, "patient counselled regarding poor sperm mobility and morphology. Poor progress explained to the patient and husband in view of poor sperm quality. Ach sperm donor (but patient not willing for sperm donor." The clinical record dated 16.01.2016 states "patient counselled for egg donor i/v/o poor AMH. Patient willing to go ahead c egg donor. Poor sperm morphology and quality explained to the couple - option of sperm donor discussed but couple not willing for sperm donation." These observations in clinical notes clearly establish that not only was the couple informed about the poor sperm quality, but they also declined the option of a donor sperm multiple times. The State Commission concluded that the OP was negligent in counselling them on alternate treatments, on the basis of blank columns in the Counselling Checklist. However, the blank fields under semen donor and surrogacy column are explained by the fact that the couple on their own refused to consider those options. Thus, the inference of the State Commission that the counselling was not done, merely because the fields were blank, is contrary to the material facts on record. RP No. 2028 of 2019 Page 13 of 19
16. It is also relevant to note that the checklist dated 16.01.2016, signed by the Complainant and her husband, specifically stated: "if donor's meds + inj. exceeds patient has to pay in actuals. If donor had any problem after OPU, pt. has to bear all the charges". This condition was accepted by the Complainant without any protest, as can be seen by her signature. Therefore, the allegation that additional Rs.7,000 was wrongfully charged towards donor expenses also lacks merit.
17. In the present case, the Complainant alleged that despite undergoing multiple cycles of treatment, the outcome remained a „failure‟. However, it is in common knowledge that the success of an IVF procedure is inherently conditional and it depends on a multiple factors, including the age of the female partner, duration and type of infertility (primary or secondary), underlying cause of infertility, quality of sperm, egg and embryo, endometrial receptivity, and the luteal phase following embryo transfer. The average IVF success rate typically ranges between 30% to 35%, with higher likelihood of success in women below the age of 35. The standard metric for measuring IVF success is the live birth rate per embryo transfer, and with the advent of modern techniques such as the "freeze-all" method, embryos are frozen after fertilization using intracytoplasmic sperm injection (ICSI) or conventional IVF, the overall success rates for which in India have seen notable improvement. Further, even in Dr. M. RP No. 2028 of 2019 Page 14 of 19 Kochar v. Ispita Seal, 2017 SCC OnLine NCDRC 1189, this Commission had observed that "IVF procedure is highly technical and success rate is low in the cases of females above 35 years. In any given cycle, chance of IVF success vary depending on age and personal health circumstances and held that no cure/success in not negligence and allowed the appeal of the doctor against order of State Commission Delhi which had allowed the complaint. As per the settled law in medical cases, it has been held in catena of judgment that no relief or success in procedure does not imply medical negligence."
18. In the present case, the OP had admittedly formed and successfully frozen 3 embryos and this fact was not disputed by the complainant. It was on the basis of the embryo quality that she chose to discontinue the treatment before completion. Thus, the failure of treatment or the formation of poor-quality embryos (Grade III) was a known risk, particularly in view of the poor sperm quality, which had already been disclosed to them. Clinical records, as discussed above, indicate that she was counselled regarding the poor prognosis arising out of poor sperm morphology and motility. The embryos were formed and frozen as per medical protocol, and there is nothing on record to suggest that the OP had assured or promised a 100% success rate. It is well settled law that the burden of proof lies on the person who asserts a fact. In the present case, the Complainant failed to discharge RP No. 2028 of 2019 Page 15 of 19 this burden by not producing any cogent or reliable evidence to show that there was any deviation from standard protocol or deficiency in service. This was also the finding of the District Forum, which held that no negligent act or breach of duty could be attributed to the OP. The qualifications and experience of the treating doctor are not in dispute. Hence, once it is evident that the OP adhered to reasonable standards of medical care, and that the doctor followed an accepted medical procedure with her informed consent, the mere fact that the outcome was not favourable cannot be a ground to impute negligence. It is well settled that a doctor is liable only when there is a failure to exercise reasonable skill and care, and not simply because the treatment did not produce the desired result. Accordingly, no breach of duty or negligence can be attributed to the OP in the facts of the present case.
19. The District Forum, despite clearly recording that there was no negligence or breach of medical standards on the part of the OP, proceeded to award partial compensation solely on the ground that the Complainant did not proceed with the embryo transfer. The State Commission, in Appeal, failed to properly appreciate the documentary evidence placed on record by OP, including the Counselling Checklist and medical records, which clearly indicate that the Complainant and her husband were fully informed about the poor quality of the sperm and were adequately counselled at every stage. Despite being made RP No. 2028 of 2019 Page 16 of 19 aware of the low probability of success, the couple consciously opted to proceed with the treatment using the husband‟s sperm. The State Commission evidently overlooked these critical records and failed to assign any reason for disbelieving the OP‟s evidence or discarding the documents on record. Instead, it appears to have inferred negligence merely from the failure of the treatment outcome. It is to be noted that in the realms of medical jurisprudence, particularly in assisted reproductive procedures, an unsuccessful outcome such as failure to achieve pregnancy does not by itself constitute medical negligence. The liability of a medical professional arises only where there is a proven breach of duty of care, and not from the mere lack of a desired outcome or result.
20. As regards the second issue, the State Commission enhanced the liability of OP in its Appeal and granted full refund of Rs.2,36,615, in favour of the Complainant, without even any Appeal being filed by the Complainant against the District Forum order. The law is well- settled that such enhancement of relief in favour of party who is not in Appeal seeking enhancement is untenable. This aspect has been emphatically deliberated and laid down by the Hon‟ble Supreme Court in Chandigarh Nursing Home v. Sukhdeep Kaur, 2022 SCC OnLine SC 1193, wherein the Hon‟ble Supreme Court observed: RP No. 2028 of 2019 Page 17 of 19
"11. However, at the same time, learned Senior Advocate appearing on behalf of the appellants is right in submitting that in a revision application preferred by the appellants aggrieved by the order passed by the District Forum, awarding a sum of Rs. 1 lakh towards compensation, and that when neither any appeal was preferred by the original complainant before the State Commission, nor thereafter any further appeal and/or revision application was filed by the original complainant before the National Commission, the National Commission was not justified in enhancing the amount of compensation in the revision application/petition preferred by the appellants.
...
14. Having heard the learned counsel appearing on behalf of the respective parties, it emerges that the District Forum awarded a sum of Rs. 1 lakh as compensation to the original complainant. However, the original complainant did not carry the matter further to the State Commission and the appellants herein - original opponents being aggrieved by the order of District Forum preferred the appeal before the State Commission. The State Commission dismissed the appeal and the appellants herein - original respondents being aggrieved by the order passed by the State Commission preferred the revision petition/application before the National Commission. At no point of time, the original complainant challenged the order passed by the District Forum aggrieved by the quantum of compensation determined by the District Forum. Therefore, as such, the order passed by the District Forum attained finality insofar as the original complainant is concerned."
21. The facts of the present case is similar and the Complainant did not appeal against the Order of the District Forum. Therefore, in the absence of any Appeal filed by the Complainant, the State Commission could not have enhanced the relief in her favour in an appeal preferred solely by the OP.
RP No. 2028 of 2019 Page 18 of 19
22. Clearly, the OP had duly discharged its professional duties and obtained informed consent for treatment. The Complainant‟s decision not to proceed with embryo transfer, after formation and freezing of viable embryos, was voluntary and not a result of any medical lapse. There exists no cogent basis to hold the OP liable for refund or deficiency in service.
23. In view of the above, enhancement of the relief granted by the District Forum, by the State Commission in the Appeal filed by the OP cannot be sustained. In the absence of and deficiency in service or unfair trade practice having been established, the order of the learned District Forum is also unsustainable.
24. Accordingly, the Revision Petition No.2028 of 2019 is allowed, both the order of the State Commission dated 12.06.2019 and the order of the District Forum dated 26.05.2018 are set aside and the complaint is dismissed.
25. There shall be no order as to costs. All pending Applications, if any, are also disposed of accordingly.
......................................................... (AVM J. RAJENDRA, AVSM, VSM (RETD.) PRESIDING MEMBER ......................................................... (ANOOP KUMAR MENDIRATTA, J) MEMBER /Hitaishee RP No. 2028 of 2019 Page 19 of 19