State Consumer Disputes Redressal Commission
Shabnam Begum vs Sofat Infertility on 26 September, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.817 of 2006
Date of institution : 14.6.2006
Date of decision : 26.9.2011
Shabnam Begum aged about 35 years w/o Sh. Abdul Karim s/o Sh. Abdulla
Khan, r/o Qrt. No.1290, A-Tyre, Ram Nagar, Tehri Jamer Mines, Udaipur,
Rajasthan.
.......Appellant
Versus
1. Sofat Infertility & Women Care Centre, (A unit of Sofat Diagnostic &
Cancer Detection Centre Pvt. Ltd.), 358, Dr. Hira Singh Road, near
Ghummar Mandi Chowk, Civil Lines, Ludhiana through Dr. Sumeet
Sofat.
2. Dr. Sumeet Sofat, Sofat Infertility & Women Care Centre, (A unit of
Sofat Diagnostic & Cancer Detection Centre Pvt. Ltd.), 358, Dr. Hira
Singh Road, near Ghummar Mandi Chowk, Civil Lines, Ludhiana.
3. Dr. Sumita Sofat, Sofat Infertility & Women Care Centre, (A unit of Sofat
Diagnostic & Cancer Detection Centre Pvt. Ltd.), 358, Dr. Hira Singh
Road, near Ghummar Mandi Chowk, Civil Lines, Ludhiana.
......Respondents
First Appeal against the order dated 4.10.2005 of
the District Consumer Disputes Redressal Forum,
Ludhiana.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Mrs. Amarpreet Sharma, Member.
Mr. B.S. Sekhon, Member.
Present :-
For the appellant : Shri Munish Goel, Advocate. For the respondents : Shri G.S. Ghuman, Advocate.
JUSTICE S.N. AGGARWAL, PRESIDENT:
Version of the appellant:
The appellant was married with Abdul Karim about 15 years ago but she was unable to conceive a child. The appellant was disappointed. She was consulting various doctors and specialists to find out the means for bearing the child but she could not succeed.First Appeal No.817 of 2006. 2
2. It was further pleaded that the appellant came across the advertisement got published by the respondents several times that they could treat a woman suffering from infertility. The appellant felt allured by this advertisement and accompanied by her husband, she travelled from Udaipur to Ludhiana on 23.10.2000 to the hospital of the respondents.
3. It was further pleaded that the respondents minutely examined the history of the appellant. The medical tests and scanning tests etc. of the appellant and of her husband were conducted by the respondents after charging a huge amount from them. She was told that she would be treated to her satisfaction and she will be helped to conceive. She was also told that her tumour would be removed and blockade would also be cleared with the help of medicines only and without conducting any operation. The whole treatment would be painless.
4. It was further pleaded that the appellant was referred to Arora Neuro Centre Pvt. Ltd., Ludhiana for MRI test. The appellant accompanied by her husband went to Arora Neuro Centre and got conducted the ultrasound of the whole abdomen and colour Doppler of the pelvis on 13.11.2000. Separate MRI of the Sella and Pelvis were also got conducted on payment basis. Thereafter she had again come to the respondents for consultation.
5. It was further pleaded that the respondents had charged a sum of Rs.500/- on 23.2.2001 as consultation fee. Certain medicines were given to the appellant and she was again asked to consult the respondents after one month. The appellants started the medical treatment accordingly.
6. It was further pleaded that the respondents had told the appellant that they would charge an amount of Rs.1,50,000/- only in cash and not by way of draft or cheque as medical fee for treating the appellant and for removal of blockade and tumour. The appellant and her husband made several visits to the hospital of the respondents and they have paid in all a sum of Rs.3,00,000/- to the respondents. The receipt was given by the respondents on their letter head for this amount but First Appeal No.817 of 2006. 3 later on they had over written the words 'private room please'. The appellant was referred to Dr. Naresh Bassi directing him to charge Rs.10,000/- from her as the room charges and medicines/drugs.
7. It was further pleaded that neither the tumour was removed from the body of the appellant nor it was dissolved by the respondents. The respondents have charged a huge amount from the appellant running into lakhs of rupees and the promises made by the respondents proved to be false. The appellant was willing to submit for medical examination to prove that she could not get any relief by the medical treatment given by the respondents. The respondents were liable to refund the amount of Rs.3,25,000/-. Hence the complaint for compensation amount of Rs.7,00,000/- along with the refund of Rs.3,25,000/-. Costs were also prayed.
Version of the respondents:
8. The respondents filed the written reply. It was admitted that the appellant had not born any child during 15 years of her married life with Abdul Karim. It was pleaded that the respondents were in the medical profession for the last more than 9 years. They were running a reputed clinic in Ludhiana. The respondents were qualified M.D. and Gynecologist. They were gold medalist during their academic session. They had created their name in the medical field by getting most of the cases regarding infertility and gyane problems treated successfully. The respondents stand by the advertisement given by them and the material published in the daily newspaper.
9. It was admitted that the appellant and her husband had visited the hospital of the respondents after learning about their reputation by the people at large. It was denied if the respondents had induced or allured the appellant or if they had asked her to get her treatment from them.
10. It was further pleaded that the appellant had come to the respondents for initial consultation on 23.10.2000. The respondents had advised her necessary First Appeal No.817 of 2006. 4 medical tests and scans costing Rs.1,000/- only. It was found by the respondents that the appellant was suffering from fibroids in uterus. She was advised non- surgical treatment for fibroids in uterus. The cost of this treatment was told to be Rs.25,000/-. The appellant had expressed her inability to pay this amount and had told that she was financially unable to bear these expenses. The respondents had advised the appellant for surgical treatment of Myomectomy (Operation to remove fibroid in uterus by surgery).
11. It was also admitted by the respondents that they had advised the appellant for MRI and colour Doppler scan at Arora Neuro Centre on 13.11.2000 as MRI and colour Doppler facility was not available with the respondents. These tests were necessary before operation of fibroid to know the exact size, shape, location and vascularity of fibroids. It was admitted that the appellant was asked to visit the hospital of the respondents immediately after the MRI test and colour Doppler test. However the appellant had come to the respondents more than three and a half months afterwards. The respondents had advised the appellant medicines for reducing the size of fibroid in uterus i.e. injection once a month for three months. Some medicines were also prescribed. The appellant was again directed to visit the hospital of the respondents after one month for ultra-sound scanning which was to be conducted free of charge. However the appellant had failed to visit the hospital of the respondents.
12. It was denied if the respondents had told the appellant that the medical fee was Rs.1.5 lakhs for treating the appellant for removal of tumour or if the respondents had demanded this amount in cash. The appellant had even expressed her inability to make the payment of cost of Rs.400/- as fee for ultrasound scan. It was also denied if the respondents had received a sum of Rs.3 lakhs from the appellant or if the appellant had visited the clinic of the respondents for a number of times.
First Appeal No.817 of 2006. 5
13. It was further pleaded that the appellant had visited the hospital of the respondents on 23.2.2001 and thereafter she had come on 8.7.2001. She was referred to Dr. Naresh Bassi, M.S. Surgeon at Bassi Nursing Home, Ludhiana for Myomectomy operation for multiple fibroid in uterus. It was written by the respondents on the consultation slip that the appellant had expressed her inability to pay the operation fee, anaesthesia fee, private room charges and other necessary charges, the total of which was Rs.20,000/-. Therefore the respondents had requested Dr. Naresh Bassi to charge only a sum of Rs.10,000/- inclusive of all charges. It was repeatedly denied if the respondents had charged a sum of Rs.3 lakh from the appellant.
14. It was further pleaded that the appellant never visited the hospital of the respondents thereafter. However the respondents had gone through the report of Dr. Lal Pathlabs Pvt. Ltd. dated 20.8.2001 and multiple fibroids in uterus of the appellant were removed measuring .8 to largest of 4.5 cm X 3.2 cm with cut surface is greywhite whorled. The allegations of non-removal of tumour are thus false.
15. It was further pleaded that the respondents were supposed to start infertility treatment for conception of the appellant after the removal of fibroids in the uterus but the appellant never approached the respondents thereafter to get the treatment. The respondents had not charged any amount from the appellants. As per the report dated 11.8.2001 the multiple fibroids were removed and were sent for laboratory test in New Delhi on the reference of Dr. Naresh Bassi. It was denied if there was any medical negligence or deficiency in service on the part of the respondents. Dismissal of the complaint was prayed. Proceeding before the District Forum:
16. The appellant filed her affidavit Ex.CW-1/A. The appellant also proved documents Annexure C-1 to Annexure C-8.
First Appeal No.817 of 2006. 6
17. On the other hand, Dr. Sumit Sofat and Dr. Sumita Sofat respondents filed their affidavit dated 20.7.2004. They also proved documents Ex.OP-1 to Ex.OP-8.
18. Learned District Forum dismissed the complaint vide impugned judgment dated 4.10.2005.
19. Hence the appeal.
Discussion:
20. The submission of the learned counsel for the appellant was that the appeal be accepted and the impugned judgment dated 4.10.2005 be set aside and the respondents be directed to pay adequate compensation to the appellant besides refunding the amount paid by the appellant to the respondents. Learned counsel for the appellant relied upon the judgment of the Hon'ble Supreme Court reported as "Kusum Sharma and Ors. v. Batra Hospital and Medical Research Centre and Ors." AIR 2010 SUPREME COURT 1050 and the judgment of this Commission dated 1.2.2011 passed in First Appeal No.1148 of 2005 "Sofat Infertility & Women Care Centre v. Philomina".
21. On the other hand, the submission of the learned counsel for the respondents was that there was no merit in the present appeal and the same be dismissed.
22. Record has been perused. Submissions have been considered.
23. The appellant had pleaded in para no.1 of her complaint that she was a Muslim lady. She was married with Abdul Karim about 15 years ago. She could not bear child during the married life of 15 years. The appellant was disappointed for having not conceived child for such a long time for one reason or the other. It is also pleaded that the appellant and her husband used to consult various doctors and specialists in this field at Udaipur. Even the doctors at Hindustan Zinc Ltd. where her husband Abdul Karim was an employee were also consulted. In the written reply these facts were admitted by the respondents. First Appeal No.817 of 2006. 7
24. It was pleaded in para 2 of the complaint that the appellant had come across the advertisement got published by the respondents for medically treating those ladies who could not bear child. The respondents have admitted in the corresponding paragraph that they were running the medical profession for the last more than 19 years at Ludhiana. They were duly qualified. They also admitted that they had been getting published advertisement in the daily newspapers. Otherwise also one of the advertisements has been proved by the appellant as Annexure-1.
25. This advertisement is in Hindi. It was published somewhere after 31.7.2000 (this date is mentioned in the backside of the advertisement issued by the Bank of Rajasthan Limited). In this advertisement got published by the respondents annexure-I, a sketch photograph of a child has been given and at a separate place, the sketch photograph of a lady has been published. It was published as a "happy news for women" who had not born any child and an allurement was also published that even those ladies can have children whatever be the age of the lady and whatever be the reason for non-conceivement. It was also published as "permanent solution" and relief from "operations". The names of the diseases were also mentioned which could be the causes for the non- conceivement and assurance was also published that all such obstacles would be removed. The manner of treatment was also published and it was stated that these medical tests and methods of treatment are available in the hospital of the respondents. Consultation fee of Rs.500/- was also mentioned. From this advertisement and from the admission made by the respondents, therefore, it is clearly proved that they had been publishing the advertisements to attract the public.
26. It is also pleaded by the appellant that she was resident of Udaipur and after reading such advertisement got published by the respondents, she had come to Ludhiana in the clinic of the respondents on 23.10.2000. The respondents First Appeal No.817 of 2006. 8 have also admitted in the written reply in the corresponding paragraph that the appellant had come to their clinic for consultation on 23.10.2000. It is not denied by the respondents if she was resident of Udaipur and she had come from Udaipur to Ludhiana to get medical treatment for bearing a child. Obviously this was so done by her after reading the advertisement got published by the respondents.
27. Before coming to the respondents, the appellant had also got conducted ultra-sonography examination from Kothari Clinic and Diagnostic Centre, Udaipur on 26.12.1997 and the ultra-sonography examination report dated 26.12.1997 is proved as Annexure-7. The appellant had got conducted pelvic ultra-sonography from Udaipur on 4.9.2000 from Anil Clinic, Udaipur and the report dated 4.9.2000 is proved as Annexure-8. It is admitted by the respondents that the appellant had come to their clinic on 23.10.2000 for initial consultation.
28. The respondents have also admitted that she had undergone necessary tests/scans at the cost of Rs.1000/- only in which it was found that the appellant was suffering from fibroids in uterus. She was advised non-surgical treatment for fibroids in uterus i.e. fibroids embolization. She was told that the expenditure was to the tune of Rs.25,000/- but she had expressed her inability to pay that amount on which she was advised surgical treatment of Myomectomy (Operation to remove fibroid in uterus by surgery). It means, therefore, that the appellant had come from Udiapur to Ludhiana after reading the advertisement given by the respondents. She had spent an amount of Rs.1000/- for undergoing medical tests.
29. It was further pleaded by the appellant in para 4 of the complaint that she was referred to the Arora Neuro Centre Pvt. Ld., Ludhiana for MRI etc. The appellant was accompanied by her husband. They had gone to Arora Neuro Centre Pvt. Ltd., Ludhiana for ultra sound of the whole abdomen and colour Doppler of pelvic. The said tests were conducted on 13.11.2000. MRI of Sella First Appeal No.817 of 2006. 9 and Pelvis were also conducted and thereafter she was referred by Arora Neuro Centre Pvt. Ltd. to the respondents. The respondents have admitted that they had advised the appellant for MRI and colour Doppler scan at Arora Neuro Centre Pvt. Ltd. on 13.11.2000 for locating the exact size, shape, location and vascularity of fibroids. The report of Arora Neuro Centre Pvt. Ltd. dated 13.11.2000 has been proved by the appellant as Annexure-4 (three sheets). It means, therefore, that the appellant and her husband had come from Udaipur to the respondents at Ludhiana on which she was referred to Arora Neuro Centre Pvt. Ltd., Ludhiana where the appellant had again to spend a huge amount to get conducted these medical tests.
30. The appellant had pleaded in para 5 of the complaint that she had again come to the hospital of the respondents on 23.2.2001 and had paid an amount of Rs.500/- to the respondents as consultation fee. This fact is again admitted by the respondents. They have admitted having received Rs.500/- as consultation fee and the prescription slip dated 23.2.2001 has been proved as Annexure-2. The respondents had prescribed certain medicines and had fixed review after one month.
31. The appellant has pleaded that the respondents had demanded an amount of Rs.1.5 lakh in cash for removal of blockade and tumour. The appellant and her husband had made several visits to the hospital of the respondents and had paid an amount of Rs.3 lakhs. A noting to that effect was written by the respondents on their letter pad regarding the receipt of this amount but thereafter they had made overwriting on this amount and this writing was converted into 'private room please'.
32. The appellant was referred to Dr. Naresh Bassi and the respondents had stated that Rs.10,000/- be charged from her. The respondents denied in the corresponding paragraph if they had demanded Rs.1.5 lakhs from the appellant or if they had received a sum of Rs.3 lakhs from her but it was admitted that the First Appeal No.817 of 2006. 10 appellant had come to them on 8.7.2001 for which the prescription slip has been proved as Annexure-3. Something was written on this receipt but overwriting was made by the respondents thereon thereafter. It means, therefore, that the respondents not only tampered with the writing on their letter pad Annexure-3 but they also made the appellant to spend a huge amount. The appellant had to come from Udaipur in Rajasthan to Ludhiana for a number of times as pleaded by her and at least three-four times have been admitted by the respondents that the appellant had come to them on 23.10.2000 and she had come on 13.11.2000 and she had come on 23.2.2001 and thereafter on 8.7.2001 and then to Dr. Bassi on 10.8.2001.
33. We fail to understand as to why the respondents asked Dr. Naresh Bassi for private room and why they recommended him to charge Rs.10,000/- only. The report of Dr. Naresh Bassi dated 10.8.2001 is placed on the file. Dr. Bassi sent the specimen fibroid to Dr. Lal Pathlabs Pvt. Ltd., New Delhi and the report of that laboratory dated 11.8.2001 has been proved as Annexure-5 while the report of Dr. Naresh Bassi dated 10.8.2001 has been proved as Annexure-6.
34. Admittedly the respondents were running a infertility and women care centre in Ludhiana for which not only they had got published their letter pads but were also giving advertisements in the newspapers and in the advertisements so many allurements were given that every kind of problem responsible for non- conception would be removed by their hospital. The appellant had to spend a huge amount not only in coming and going from Udaipur to Ludhiana they had paid Rs.500/- as consultation fee to the respondents on 23.2.2001. They had spent an amount of Rs.1,000/- on medical tests on 23.10.2000. Even as per the admission of the respondents they had paid Rs.10,000/- to Dr. Naresh Bassi and must have spent a huge amount while getting MRI test from Arora Neuro Centre Pvt. Ltd., Ludhiana at the asking of the respondents.
First Appeal No.817 of 2006. 11
35. Since the respondents were running a clinic it cannot be believed that they were giving medical treatment to the appellant without charging anything. The version of the appellant appears to be correct that the respondents had given some type of receipt and then overwriting was made and the original writing was made illegible. If the words 'Private Room Please" were to be mentioned these words, could have been mentioned somewhere else on that letter pad but not at the place where the writing was already made by them.
36. The version of the respondents is that the appellant was pleading all the time that she was unable to spend the money of Rs.25,000/- or even Rs.400/- for ultrasound. This version is absolutely unbelievable when the appellant had come from Udaipur to Ludhiana for 4/5 times for seeking solution to non-conception it cannot be believed that she was unable to spend the amount of Rs.25,000/-.
37. The version of the respondents that Dr. Naresh Bassi was to charge a sum of Rs.20,000/- for which the respondents had advised him to charge only a sum of Rs.10,000/-. It also appears to be false because no document has been placed on the file by the respondents in support of the plea that Dr. Bassi used to charge Rs.20,000/- and the respondents had asked him to reduce the amount to Rs.10,000/-. The writing of the respondents that Rs.10,000/- be charged from the appellant is clearly proved but it cannot be made out if the fee of Dr. Naresh Bassi was more or less. It can also be that the respondents could get a share from Dr. Naresh Bassi out of Rs.10,000/-.
38. Since the respondents had charged a sum of Rs.500/- initially from the appellant, therefore, the appellant is proved to be a consumer of the respondents. The respondents had given false advertisements assuring them of all medical reliefs while no relief could be given to the appellant and she was made to spend a huge amount for coming from Udaipur in Rajasthan frequently to Ludhiana and getting conducted numerous medical tests and treatment by spending a huge amount. It was only the false advertisement issued by the respondents which First Appeal No.817 of 2006. 12 persuaded the appellant to come from Udaipur to Ludhiana. She had come for the first time on 23.10.2000 and she filed the complaint on 28.4.2003. Till then she had achieved no result. The respondents, therefore, have clearly committed deficiency in service and unfair trade practice by giving the false advertisements.
39. Since the payment of Rs.3,00,000/- is not proved, therefore, the refund of Rs.3,00,000/- cannot be awarded to the appellant.
40. In the circumstances of the case, this appeal is accepted and the impugned judgment dated 4.10.2005 is set aside. The appellant is awarded a sum of Rs.50,000/- as compensation in lump sum.
41. The respondents are directed to pay this amount of Rs.50,000/- to the appellant within a period of two months after the receipt of a copy of the order failing which the respondents would be liable to pay interest on this amount at the rate of 9% per annum from today till the date of payment.
42. The arguments in this case were heard on 16.9.2011 and the order was reserved. Now, the order be communicated to the parties.
43. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE S.N. AGGARWAL)
PRESIDENT
(MRS. AMARPREET SHARMA)
MEMBER
September 26 , 2011 (BALDEV SINGH SEKHON)
Bansal MEMBER
First Appeal No.817 of 2006. 13