State Consumer Disputes Redressal Commission
The Concerned Authority , Infency Helth ... vs Mr. Kala Chand Sil on 10 February, 2016
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/1005/2014 (Arisen out of Order Dated 07/08/2014 in Case No. CC/413/2013 of District Kolkata-II(Central)) 1. The Concerned Authority , Infency Helth Care 2/2A, Dr. Suresh Sarkar Road, P.S. - Entally, Kolkata - 700 014. 2. The Concerned Authority , Infency Helth Care 261, Rajdanga Main Road, Kolkata - 700 107. ...........Appellant(s) Versus 1. Mr. Kala Chand Sil S/o Late Bijoy Krishna Sil, Street No.26B, Qurt. no. 11A, Chittaranjan - 713 331, Dist. Burdwan. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE KALIDAS MUKHERJEE PRESIDENT HON'BLE MR. UTPAL KUMAR BHATTACHARYA MEMBER For the Appellant: Mr. Sovanlal Bera , Advocate For the Respondent: Mr. Subrata Mondal, Advocate ORDER
10/02/16 HON'BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT This Appeal is directed against the judgment and order passed by Learned District Forum, Kolkata, Unit-II in CC 413 of 2013 allowing the complaint with the direction to the OPs to refund the sum of Rs.55,000/- to the Complainant and also pay a sum of Rs.50,000/- for causing mental pain and agony and imposed punitive damages of Rs.50,000/- to be deposited with the Forum within 15 days from the date of order failing which penal interest @ Rs.200/- shall be assessed over the said amount till realisation.
The case of the Complainant/Respondent, in short, is that on seeing the advertisement made in the Ananda Bazar Patrika dated 31/07/11 he contacted the OP Health Care Centre and after consultation with the doctor he paid Rs.55,000/- for the treatment of hair fall. Thereafter 27 sittings were attended by the Complainant, but no successful result was found. Under such circumstances, the Complainant asked the OP for the refund of the entire amount paid by him. But the OP did not refund the amount and the Complainant approached the Consumer Affairs Department, but the OP did not turn up. Under such circumstances, the complaint was filed before the Learned District Forum.
The Learned Counsel for the Appellant has submitted that the Complainant chose Stem Cell Therapy after consultation with Dr. S. Paul. It is contended that the Complainant was verbally asked not to go for hair dye. It is submitted that the total sittings were 27 out of which the Complainant attended 19 sittings only. It is submitted that as the Complainant did not avail the remaining treatment he was not entitled to get any compensation. It is contended that the total amount was Rs.59,500/- out of which the Complainant paid Rs.55,000/-. It is submitted that the doctor at the OP Health Centre was a qualified person and no expert evidence was adduced by the Complainant to prove negligence. The Learned Counsel has referred to the decision reported in 2013 (4) CPR 88 (NC) [Rajiv Navath vs. Dr. Shajahan Yoosaf Sahib] wherein it has been held that a doctor is not guilty of negligence if he has acted in accordance with practice accepted as proper by a responsible body of medical men skilled in that particular art. The Learned Counsel for the Appellant has referred to the decision reported in 2014 (4) CPR 398 (NC) [P.C. Haridasan vs. Lourdes Hospital] wherein it has been held that allegation of medical negligence must be proved by cogent evidence. Reference has also been made to the decision reported in 2010 CTJ 241 (SC) [Kusum Sharma & Ors. vs. Batra Hospital] wherein it has been held that as long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence.
The Learned Counsel for the Respondent has submitted that in the prescription the name of the doctor has not been mentioned. It is contended that the Learned District Forum was justified in passing the impugned judgment and order.
We have heard the submission made by both sides and perused the papers on record. Admittedly, the Complainant/Respondent paid Rs.55,000/- to the OP/Appellant for the treatment of hair fall. It is the contention of the Complainant/Respondent that in spite of such treatment there was no successful result. It has been stated in the W.V. that the result of Stem Cell Therapy has always been slow and the same was made known to the Complainant before he underwent the therapy. The OP has denied that the Complainant received no successful result from Stem Cell Therapy. It has further been averred that Stem Cell Therapy is a non-surgical therapy which is scientifically proved to be extremely useful in curing baldness. In the reply to the questionnaire the Complainant has stated that he attended 19 sittings. From the materials on record it is clear that in spite of attending 19 sittings out of 27 the treatment did not yield the desired result. The OP/Appellant, however, by letter dated 11/02/13 addressed to Deputy Assistant Director, Consumer Affairs Department, Government of West Bengal agreed to provide treatment on one day procedure hair re-growth to the Complainant free of cost. Having heard the Learned Counsel for the parties and on perusal of the papers on record, we modify the impugned judgment as hereunder.
The Appeal is allowed in part. The OP/Appellant is directed to pay compensation of Rs.35,000/- and litigation cost of Rs.5,000/- to the Complainant/Respondent within 45 days from this date failing which simple interest @ 9% p.a. shall accrue from the date of default till realisation. The other directions passed by the Learned District Forum are set aside. The impugned judgment stands modified accordingly. [HON'BLE MR. JUSTICE KALIDAS MUKHERJEE] PRESIDENT [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER