State Consumer Disputes Redressal Commission
Mrs. Balwinder Kaur vs Sidharth Charitable Hospital on 17 December, 2012
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.801 of 2009.
Date of Institution: 11.06.2009.
Date of Decision: 17.12.2012.
1. Mrs. Balwinder Kaur W/o Sh. Raghbir Singh;
2. Raghbir Singh Husband of Smt. Balwinder Kaur;
Both residents of VPO Ballowal, Pakhowal Road, near Jodha, District
Ludhiana.
.....Appellants.
Versus
1. Sidharth Charitable Hospital, Model Town, Ludhiana through Dr.Mrs.
Sofat.
2. Sofat Infertility & Woman Care Centre, Sofat Diagnostics & Cancer
Detection Centre Pvt. Ltd. 358, Hira Singh Road, near Ghumar Mandi
Chowk, Civil Lines, Ludhiana through Dr. Mrs. Sofat.
3. Grewal, Sidarath Charitable Hospital, Model Town, Ludhiana.
4. Dr. Mrs. Sofat, Sofat Infertility & Woman Care Centre, Sofat
Diagnostics & Cancer Detection Centre Pvt. Ltd. 358, Hira Singh Road,
near Ghumar Mandi Chowk, Civil Lines, Ludhiana.
5. Oriental insurance Company Ltd. near General Bus Stand, Ludhiana
...Respondents.
First Appeal against the order dated
04.05.2009 of the District Consumer
Disputes Redressal Forum, Ludhiana.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Baldev Singh Sekhon, Member.
...................................
Present:- Sh. Munish Goel, Advocate, counsel for the appellants.
Sh. Neeraj Pal Sharma, Advocate, counsel for respondents no.1, 2 & 4.
Respondent no.3 Exparte.
None for respondent no.5.
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INDERJIT KAUSHIK, PRESIDING MEMBER:-
Mrs. Balwinder Kaur another, appellants (In short "the appellants") have filed this appeal against the order dated 04.05.2009 passed First Appeal No.801 of 2009 2 by the learned District Consumer Disputes Redressal Forum, Ludhiana (in short "the District Forum").
2. Facts in brief are that the appellants filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the respondents, asserting that appellant no.1 is the wife of appellant no.2 and they have two female children and in order to get a male child, they visited various hospitals/doctors, but in vain. The appellants read the advertisement of respondent no.1 published in Hindi newspaper on 19.02.2006 and the appellants visited respondent no.1 on 03.03.2006 and paid the consultancy charges of Rs.100/-. The appellants told respondents no.1 to 4 regarding the male child and respondent no.4 examined appellant no.1 and recommended for IVF treatment (test tube baby) and the appellants, on the assurance and being hopeful, gave their consent. The blood sample of appellant no.1 was taken as well as the sample of semen of her husband was taken. The scanning was also done and the respondents charged Rs.3,000/- for the purpose of tests, but no receipt was given. The respondents recommended the medicines for 10 days and the appellants purchased the same from the respondent hospital for Rs.345/- without any bill and the respondents asked the appellants to visit on 06.03.2006 as the sample/scanning was done on 03.03.2006. On 06.03.2006, respondents no.1 and 4 stated that all the reports are O.K. and appellant no.1 is ready for IVF treatment and asked to deposit Rs.25,000/- which was paid in cash to respondent no.1 through respondent no.4. Respondent no.1 further demanded Rs.5,000/- for ET purpose. On this, the appellants agitated and told that as per the advertisement, no further expenses were disclosed, but the respondents refused to carry out the treatment without paying Rs.5,000/- and the appellants paid the same. The respondents also asked to pay Rs.5,000/- for medical expenses etc. and they were asked to come on 13.03.2006. On 13.03.2006, treatment was given to appellant no.1 and on 17.03.2006, semen of appellant no.1 was taken and the doctor asked them to First Appeal No.801 of 2009 3 visit on the next day along with Rs.10,000/-. The appellants visited respondent no.1 on 24.03.2006, who conducted the scanning and advised for starting of injection and asked them to pay for the injection namely Endogen- 75-AMP (2 daily) for three days and Leusven a AMP (1 daily) for three days and the appellant no.1 paid Rs.5070/- for these injections, but no bill was given.
3. On 25.03.2006 and 26.03.2006, the appellants visited the respondents and remaining injections were given. On 26.03.2006, scanning was done. After that, the doctor asked for payment for bringing 16 injections of Endogen-75 and 4 injections Leusven 1AMP, costing Rs.12,840/- and some injections were given and the remaining were advised to be kept in cold conditions. Keeping in view the money demanded by the respondent without schedule, the appellants planned to drop the treatment in between due to lack of funds, but appellant no.2 advised appellant no.1 to continue her treatment and approached Indian Overseas Bank, Gujjerwal for Rs.20,000/- as loan which was sanctioned by the bank and the appellants visited respondent no.1 on 27.03.2006, 28.03.2006 and 29.03.2006 for taking injections.
4. On 30.03.2006, respondent no.1 conducted the scanning of appellant no.1 and the same were shown to appellant no.1 with remarks that appellant no.1's eggs are very fine and again she was advised for daily 5 injections of Endogen and 1 injection of Leusven for three days and demanded the payment of Rs.11,910/- and the appellants paid the same, but no bill was given. The remaining injections were given on 31.03.2006 and 01.04.2006 and appellant no.2 borrowed a sum of Rs.6,000/- from his cousin Paramjit Singh. On 02.04.2006, the injections were further given and Rs.3250/- were paid. Likewise, the treatment was given on 03.04.2006, 06.04.2006, 08.04.2006 and every time, the amount was demanded and the same was paid. On 24.04.2006, appellant no.1 while going for natural call, noticed some blood coming out along with urine and respondent doctor was apprised with the latest position on telephone, who advised to contact First Appeal No.801 of 2009 4 respondent no.4, but she could not be contacted. The appellants reached at 9.45 a.m. and by that time, the indication was that no IVF was performed as promised by the respondent. Respondent no.4 did not meet them on that day and asked them to come on 26.04.2006 and on examination, stated that the operation has failed and asked the appellants that if they require IVF treatment again, it will be costing again. In case of laparoscopy treatment, it would cost Rs.15,000/- plus medicine, but respondent no.4 refused to do this operation and for open surgery, the cost was Rs.20,000/- plus medicine approximately Rs.40,000/-. The appellants asked for refund of the previous amounts, but the respondents refused. Respondent no.2 gave the estimate of Rs.40,000/- on its letter pad and refused to hand over the previous documents or to reduce the charges. The respondents adopted unfair trade practice and collected Rs.85,000/- from the appellants against advisements rate of Rs.25,000/-, by giving false assurance and ultimately refused to carry out the treatment. No reasons for the failure of the IVF treatment were given. The respondents were having no experience or guidelines in IVF treatment. The respondents are deficient/negligence in service and the appellants suffered a lot of mental tension, agony and harassment.
5. It was prayed that the respondents may be penalized to the tune of Rs.5.00 lacs and to pay Rs.11,000/- as costs.
6. In the written reply filed on behalf of respondents no.1, 2 & 4, the preliminary objections were taken that the appellants are not consumers within the meaning and definition of the Act and the Forum has no jurisdiction. The complaint is false and the appellants were well aware that the chances of success of IVF are only 20% to 25%. The complaint is filed with ulterior motive. The answering respondents are insured with Oriental Insurance Company Limited and the complaint is not maintainable.
7. On merits, it was admitted that the appellants are wife and husband and have two female children. Giving of advertisement and payment of Rs.100/- as consultancy charges was admitted. The appellants never First Appeal No.801 of 2009 5 approached the respondents for the birth of male child, nor the answering respondents assured for birth of the male child. The appellants approached the answering respondents for IVF treatment, as there was tubal block and she was not conceiving for the last seven years, as per the facts disclosed by the appellants. The appellants were well informed regarding the chances of success of IVF treatment which is only 25% to 30% and depends upon the age, history of the patient. The answering respondent no.4 is a reputed doctor and they have no chemist shop inside the clinic. Appellant no.1 was asked to get herself checked after one week from 03.03.2006 and it was so mentioned in the prescription slip. It was admitted that the appellants visited the hospital on 06.03.2006 and deposited Rs.25,000/-. Rs.5,000/- were charged as Embryologist charges, as the same was to be conducted by a visiting doctor.
8. On 13.03.2006, appellant no.1 visited the respondents and she was injected Decapeptyl depot which cost Rs.3500/-and the same was borne by the appellants. As per the advertisement, only the treatment was to be provided and the cost of the medicine was not included. In the very first prescription slip, it was so mentioned. No semen whatsoever was taken from appellant no.2, nor any amount of Rs.10,000/- was received. The appellants visited the answering respondent on 24.03.2006 and they were prescribed the said injections, but the same were got injected by the appellant from some nurse of their local area, as disclosed by the appellants on their next visit on 25.03.2006. Only the prescription was given and the entire story is concocted. The appellants visited the answering respondents on 26.03.2006 for scanning and the said injections were prescribed, but no amount was taken. It was admitted that the injections were given to appellant no.1 and thereafter, the appellants got the same injected from private nurse and they were called on 30.03.2006. Scanning was conducted on 30.03.2006 and further injections were prescribed. As per the practice and best of professional knowledge, the said injections numbering five were duly injected to appellant no.1. The treatment was provided to the best of the ability and professional capacity of First Appeal No.801 of 2009 6 the answering respondents and as per the medical sciences. The answering respondents asked the appellants to come on 04.04.2006. The appellants never came on 04.04.2006, but came on 06.04.2006 and IVF was conducted and eggs were taken out under sedation and Anesthetist was called. Entire IVF was part of the package and no cost of the medicine was received. There is no doctor namely Grewal, who has been arrayed as respondent no.3 in the complaint, nor there is any Madam Grewal, working with the answering respondent. Appellant no.1 visited the answering respondent on 08.03.2006 and IVF Embryo Transfer was conducted. There can be number of reasons for the failure of the IVF. As per the literature, the pregnancy rate was 18.1% per ovarian and the delivery rate was 13.5% and it further depends upon the age of the woman.
9. Appellant no.1 was suffering from tubal block and by lateral corneal fibrosis and, as such, IVF was not successful and appellant no.1 was medically examined again on 26.04.2006 and they were informed to undergo further treatment for tubal block and the expenses for the said treatment was around Rs.40,000/-. The professional fee charged is not refundable. In fact, it was only regarding the IVF surgery which was advised again at the cost, for which a writing was given. There is no professional negligence in the services nor there is any unfair trade practice. The amount of Rs.25,000/- was received for treatment. The entry dated 03.04.2006 is forged and fabricated. No false assurance was given. The body of appellant no.1 has not responded to the treatment and further treatment for tubal block was advised which is different from the package for IVF and for which separate payment was to be charged. Other allegations were denied and it was prayed that the complaint may be dismissed with costs.
10. In the written reply filed on behalf of respondent no.5, similar preliminary objections were taken in addition that the complaint is bad for mis- joinder of parties, as the answering respondent is neither a necessary nor proper party. There is no contract of insurance between the appellants and First Appeal No.801 of 2009 7 respondent no.5. The complaint is not maintainable, as there is no deficiency in service on the part of the answering respondent. On merits, allegations of the complaint were denied and dismissal of the complaint was prayed.
11. Parties led evidence in support of their respective contentions by way of affidavits and documents.
12. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that the treatment was taken by the appellant for birth of a male child, but the respondents never assured or undertook that after the said treatment, she would give birth to a male child. The appellants have taken the treatment for IVF. Despite two earlier deliveries, there was some problem on account of which appellant no.1 was not conceiving and took IVF treatment which does not assure 100% guarantee. The respondents were not negligent in treating the appellant, and dismissed the complaint.
13. Aggrieved by the impugned order dated 04.05.2009, the appellants have come up in appeal.
14. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the appellant and respondents no.1,2 & 4.
15. The respondent no.3 has not contested the appeal and has been proceeded against exparte.
16. Neither the counsel for the respondent no.5 nor anybody else appeared at the time of arguments.
17. Appellant no.1 took treatment from respondents no.1 to 4 in pursuance of the advertisement made by them. Appellant no.1 had earlier conceived and gave birth to two female children and advertisement Ex.C-1 allured the appellants to go for test tube baby through IVF treatment at the rate of Rs.25,000/-, which was earlier Rs.50,000/-. As per prescription slips Ex.RW-1/D to Ex.RW-1/J, appellant no.1 took IVF treatment from respondents no. 1 and 4 and facilities available were the test tube baby, First Appeal No.801 of 2009 8 semen banking and many others, as detailed in the prescription slips. The respondents have taken a plea that they have informed the appellants that the result of IVF is 20% to 25% or 25% to 30%, depending upon the age of the woman. The respondents have not placed on record any such document to show that the appellants were made aware about the percentage of the successful results. The respondents have relied upon literature Ex.RW-1/K to Ex.RW-1/O, wherein the successful results were mentioned from 20% to 30% or even below. Dr. Sumita Sofat, respondent no.4 has filed her own affidavit which is the reproduction of the written statement and the consent form Ex.RW-1/A wherein, the success rate is mentioned in English, but there is nothing that the contents of this consent form, which are in English, were explained to the appellants and letter Ex.RW-1/B also is stated to be signed by the appellants and the reading of the same shows that this letter was got signed from the appellants, just for the defence and in advance on 06.04.2006, the undertaking was taken from the appellants that in case of failure of treatment, they will not take any action against the doctor, nor demand the amount. The documents Ex.RW-1/A to Ex.RW-1/B are procured documents, just to escape the liability by respondents no.1 and 4 and, as such, these documents are no documents in the eyes of law. Except the bald statement through affidavit of respondent no.4 and the literature, there is no material to prove that the appellants were made aware about the percentage of the successful results. Even in the advertisement, no such conditions were mentioned. The appellants in good faith took the treatment, hoping to have a male child and spent a lot of money for which, the respondents have not issued even the receipts and they have undergone a lot of mental pain and suffering and their hopes were dashed, when IVF treatment failed and thereafter again, respondents no.1 and 4, not satisfied from the greed, asked the appellants to go for another treatment, which was to cost about Rs.40,000/-, as admitted by respondents no.1 and 4, but the appellants did First Appeal No.801 of 2009 9 not go for it, because even earlier the appellant no.2 has taken a loan Rs.20,000/- from the bank, for taking the treatment.
18. From the above discussion, it is clear that the respondents no.1 and 4 acted in such a manner and kept the appellants in dark and allured them through advertisement, for conceiving a male child and this amounts to unfair trade practice and the mental agony and the pain which the appellant no.1 has undergone, cannot be compensated, as her hopes to have a male child were completely dashed. In our opinion, a lumpsum compensation of Rs.2.00 lacs shall meet the interest of justice.
19. Accordingly, the appeal is accepted and the impugned order under appeal dated 04.05.2009 passed by the District Forum is set aside. Consequently, the complaint filed by the appellants/complainants is allowed and the respondents no.1 and 4 are directed to pay Rs.2.00 Lacs (Rupees Two Lacs) to the appellants within one month failing which this amount shall carry interest @ 7.5% p.a. from the date of filing of the compliant till payment. Since, respondents no.1 and 4 are insured vide policy Ex.R-1 with respondent no.5, as such, respondent no.5 shall also be liable to the above amount jointly and severally along with respondents no.1 & 4. Complaint against respondents no.2 & 3 is dismissed.
20. The arguments in this appeal were heard on 06.12.2012 and the order was reserved. Now the order be communicated to the parties.
21. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Member (Baldev Singh Sekhon) Member December 17, 2012.
(Gurmeet S)