State Consumer Disputes Redressal Commission
A.N. Yasmin vs Prabas V Care Institution on 12 September, 2013
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE : Honble Thiru Justice R. REGUPATHI PRESIDENT Thiru.A.K. ANNAMALAI MEMBER (JUDICIAL) F.A.NO.15/2010 (Against order in C.C.NO.20/2008 on the file of the DCDRF, Ooty) DATED THIS THE 12th DAY OF SEPTEMBER 2013 A.N. Yasmin D/o. A. Nawab John 113/37-D, Tan Tea Colony M/s. B.L. Lavanya TANTEA, Coonoor Counsel for The Nilgiris District Appellant / Complainant Vs. 1.
Tmt. Prabha Reddy Managing Director-Proprietor Prabas V Care Institute 15, New Giri Salai G.N.Chetty Street, T. Nagar Chennai- 17
2. The Manager- Head Incharge Prabas V Care Institution 1286/B-3, Trichy Road M/s. Warran & Sairam Near Kannan Departmental Store Counsels for R1 and R2 Sungam, Coimbatore
3. The Director, Podigai Television M/s.S.M.Deenadayalan No.5, Sivananda Salai Counsels for R3 Chepauk, Chennai- 600 005 Respondents/ Opposite parties The Appellant as complainant filed a complaint before the District Forum against the opposite parties praying for certain direction. The District Forum dismissed the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.16.06.2009 in CC. No.20/2008.
This petition coming before us for hearing finally on 10.7.2013. Upon hearing the arguments of the counsels on either side, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order:
JUSTICE R. REGUPATHI, PRESIDENT
1.
The complainant, unable to succeed in her attempt, before the District Forum is the appellant herein.
2. The complainant, who suffered dandruff and hair loss, attracted by the television programme of the 3rd opposite party, approached the 1st and 2nd opposite parties, for taking herbal treatment with them, with a fond hope of maintaining beautiful appearance with long hair. The complainant, an unmarried girl, aged about 22 years at the time of filing complaint, who was employed as an airhostess, approached the 1st and 2nd opposite parties on 16.8.2006 at the clinic of the 2nd opposite party at Coimbatore, and on the same day sample hair was taken from the complainant for examination, and she was directed to come back on 19.8.2006 to receive the result. It was alleged that the report was normal and that the skin and hair condition was normal, and promised the complainant that after getting treatment the dandruff will be reduced, and the hair growth will improve.
The complainant as suggested by the 2nd opposite party applied the medicine given by them for a period of one month. Attracted by the promising words of the 2nd opposite party, the complainant continued her treatment. Though it was promised that there would not be any side effect and irritation, she suffered headache, irritation on the scalp, and increase of hair fall, coupled with the fact that there was oozing of blood from the skin of the scalp. Though this was reported by the complainant and her parents, the 2nd opposite party insisted that the medicine applied by them must be continuously applied to receive good result. In the meantime, the complainant had visited the 2nd opposite party on 24.9.2006, 1.10.2006 and 15.10.2006. On 16.12.2006, the 2nd opposite party advised the complainant to take hormone and blood test, and since the test report suggested no abnormality, the opposite party advised the complainant to apply sterilization vitalizer and the complainant had applied the ointment given by them sincerely for the next 2 months, but there was no improvement. It has resulted in hair loss in entire scalp, continuous pain, itching, irritation and the same has caused mental agony. It is alleged that due to the total hair loss, and disfiguration, the complainants future has been spoiled, and because of her appearance, nobody came forward to marry her. Therefore, alleging deficiency of service and treatment on the part of the opposite parties, for the loss of her appearance and bright future, the complainant filed a complaint before the District Forum, claiming compensation of Rs.10 lakhs towards mental agony.
3. The opposite parties 1 and 2 filed a detailed version wherein admitted the treatment given to the complainant, denying the allegations made in the complaint. The opposite parties 1 and 2 stated that the complainant met them for treatment on 16.8.2006, for consultation regarding hair growth and for treatment of dandruff. It was diagnosed that the complainant had a symptom of Alopecia Areata, an auto immune disorder, which triggered due to the presence of excessive stress. The complainant was found to be suffering from the disorder at an advanced stage, in which there will be hair loss and to slow down such hair loss, medication was given, and it was informed to the complainant that there would not be a complete cure. It was further advised to lead a stress free life. Since hair fall was noticed, she was directed to shave her head for the easy application of oil and massage, and they have directed the complainant to take hormone and blood test, and directed to go for second degree treatment viz. application of special vitalizer oil, and inspite of that there was no response, since the complainant was suffering from Alopecia Areata. The hair fall and irritation was not due to the application of medicine, suggested by the opposite parties, but due to someother medical reasons. The opposite parties have filed two documents on their side.
3. The 3rd opposite party filed their separate version stating that so far as the 3rd opposite party TV channel is concerned, there was no privity of contract between the complainant and the 3rd opposite party. The complainant had neither issued legal notice nor made enquiry with the 3rd opposite party regarding the programme, before filing the complaint.
Mainly because there was a telecast of the 1st and 2nd opposite partys programme, the 3rd opposite party cannot be mechanically impleaded as one of the opposite parties.
4. The District Forum, on consideration of the materials available on record, finding no merits, particularly that a medical expert has not been examined by the complainant to substantiate the case, declined to appreciate the allegation as against all the opposite parties, and dismissed the complaint. Aggrieved against the order impugned, present appeal is filed.
5. The learned counsel for the appellant/ complainant submitted that while repeating the allegations made in the complaint submitted that the future of the unmarried young girl has been spoiled because of the wrong treatment given by the 1st and 2nd opposite parties. Attracted by the interview and TV advertisement, the complainant met the 1st and 2nd opposite parties for treatment, under the fond hope that some recovery will be given for hair loss and dandruff. Though they have promised that on application of the herbal oil and treatment, the condition will improve, it has resulted in total damage of the personality of the complainant. Though it has been found out that the complainant was having a deficiency of alopecia areata, treatment would have been given or would have simply advised the complainant to go to someother medical expert for getting treatment. The complainant was given promise and submitted that she was cheated by the opposite parties. The condition of the complainant and her appearance will speak for itself before and after the treatment. Though the medicine was not suitable to the condition of the complainant, it was repeatedly advised to go for treatment with the opposite parties again and again, and they were made to spend Rs.16,066/- towards medical expenditure, and further on account of application of the medicine given by the opposite parties, there was great physical and mental discomfort. A perusal of the documents marked as Ex.A1 to A6, will prove the case of deficiency against the opposite parties 1 and 2, in a case of this nature, an expert opinion may not be necessary and the medical records with photographs will speak for itself. On the basis of the materials available, the District Forum should have come to a conclusion that there was deficiency service. But erroneously, by holding that a medical opinion is necessary, dismissed the complaint. Though the onus of proof is on the side of the complainant, mere perusal of contemporaneous documents and physical appearance of the head of the complainant, and allegations made thereon will constitute deficiency. For the allegations leveled against the opposite parties, there was no proper explanation, and contended under such circumstances the case of complainant could have been allowed and compensation could have been awarded.
6. Per contra, the learned counsel for the opposite parties submitted that it is true that TV programmes were conducted with the 3rd opposite party and treatments were given for such ailments to save the patients, and the results were successful with other clients. Only after careful examination of the case on hand, and after receiving the lab report etc., such treatment was given to the complainant, and admittedly the complainant was suffering from serious ailments of alopecia areata and it is coupled with mental stress, for which the opposite parties cannot be held responsible. There may be someother complications for the complainant, which may be due to someother medical reasons, for which the 1st and 2nd opposite parties cannot be made liable. The medicine which was suggested to the complainant was used to several such patients, and since it was successful, the same was suggested to the complainant also, and either the complainant would not have followed the directions given by the 1st and 2nd opposite parties properly, or it may be due to someother complications, for which the opposite parties cannot be held responsible.
7. By relying on the judgements of the Honble Supreme Court in Jacob Mathew Vs. State of Punjab & Another reported in CDJ 2005 SC 570 and the order of the National Commission held in Smt. Narangiben Subodhchandra Shah and others Vs. Gujarat Research and Medical Institute and others, reported in CDJ 2012 (Cons.) the opposite parties submitted with due diligence that they have followed most desirable and accepted course of treatment, and inspite of that if anything happens, they cannot be held liable mainly on the allegations of the complainant. It is further contended that after all the doctors can only treat, and in a case of this nature, it cannot be equated that the 1st and 2nd opposite parties have committed medical negligence of deficiency of service.
8. The learned counsel for the 3rd opposite party contended that they have nothing to do with the complainant. There may be some programme or advertisement, and it is up to the complainant to take it in the right sense. Television advertisement only will convey a message, and to take up the same in the right sense is upto the discretion of the viewers. At any rate, the complainant cannot be categorized as a consumer of the 3rd opposite party, since there is no consideration and privity of contract between them.
9. We have heard the learned counsels on either side, perused the materials on record, and the citations filed by the opposite parties.
10. Alopecia Areata is a common skin disorder of presumed autoimmune etiology and it usually shows an unpredictable course.
Treatment of alopecia areata is challenging. There is very little information on the use of surgical therapies for the treatment of alopecia areata in the medical published work. The cause for alopecia areata is unknown. Therefore, admittedly there are no successful treatment methods available.
11. In the magazine of the New England Journal of Medicine, April 2012, under the topic Review Article, regarding the Medical progress of Alopecia Areata, it is observed as follows:
The impact of certain skin diseases on the lives of those affected tends to be underestimated or even dismissed as simply a cosmetic problem. Alopecia areata exemplifies such a condition, owing to its substantial disease burden and its often devastating effects on the patients quality of life and self-esteem. Although alopecia areata is one of the most common autoimmune diseases, the pathobiology of this chronic, relapsing hair-loss disorder is not fully understood, and the available therapies are disappointing.
12. In the case on hand admittedly the treatment commenced only after identification that the complainant was suffering from Alopecia Areata. Knowing fully well that there is no scientific proven treatment available, the 1st and 2nd opposite parties ventured TV interview with a promise that such deficiency is curable by their treatment and ought to have been more cautious and careful in treating such a disease. Once programs are conducted in television, indirectly it is considered as an advertisement, and it is quiet natural that people suffering from such disorders may approach them for treatment. Only under such circumstances it appears that the complainant approached the 1st and 2nd opposite parties. Inspite of repeated requests, the vedio clippings were not produced by the opposite parties. Admittedly the complainant was entertained for treatment on 16.8.2006, on receipt of prescribed charges and admittedly she was given treatment by supplying oil, ointment and medicine. Inspite of repeated complaints that she was suffering from irritation, headache and other complications, she was advised to use the same medicine continuously and further more after the first round of treatment, the treatment continued till 16.12.2006.
The complainant had furnished contemporaneous materials to substantiate the claim and it is not in dispute. Photographs of the complainant taken before and after the treatment also have been marked. In addition to that the complainant appeared in person and exhibited the actual condition as on today, at the time of enquiry.
We could see that there was total hair loss and almost it has become a bald head.
13. The opposite parties have relied on judgements of the Honble Supreme Court and National Commission. On perusal of all the citations, we could find that the cases referred in those citations are cases involving medical procedures. But in the case on hand, the deficiency is apparent.
Sec. 2(r) of Consumer Protection Act reads as follows:
Unfair Trade Practice means a trade practice which, for the purpose of promoting the sale, use of supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely:-
1) the practice of making any statement, whether orally or in writing or by visible representation which,-
(i) falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model;
(ii) falsely represents that the services are of a particular standard, quality or grade;
(iii) falsely represents any re-built, second-hand renovated, reconditioned or old goods as new goods;
(iv) represents that the goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which such goods or services do not have;
(v) represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller r supplier does not have;
(vi) make a false or misleading representation concerning the need for, or the usefulness of any goods or services
(vii) gives to the public any warranty or guarantee of the performance, efficacy or length f life of a product or of any goods that is not based on an adequate or proper test thereof;
Provided that where a defence is raised to the effect that such warranty of guarantee is based on adequate or proper test, the burden of proof of such defence shall lie on the person raising such defence.
(viii) makes to the public a representation in a form that purports to be
(i) a warranty of guarantee of a product or of any good or services; or
(ii) a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result, If such purported warranty or guarantee or promise is materially misleading or if there is no reasonable prospect that such warranty guarantee or promise will be carried out;
(ix) materially misleads the public concerning the price at which a product or like products or goods or services, have been or are ordinarily sold or provided, and for this purpose, a representation as to price shall be deemed to refer to the price at which the product or goods or services has or have been sold by sellers or provided by suppliers generally in the relevant market unless it is clearly specified to be the price a which the product has been sold or services have been provided by the person whom or on whose behalf the representation is made;
(x) gives false or misleading facts disparaging the goods, services or trade of another person.
Explanation-
for the purpose of clause (1), a statement that is-
(a) expressed on an article offered or displayed for sale or on its wrapper or container ; or
(b) expressed on anything attached to, inserted in, or accompanying an article offered or displayed for sale, or on anything on which the article is mounted for display or sale; or
(c) contained in or on anything that is sold, sent, delivered, transmitted or in any other manner whatsoever made available to a member of the public, shall be deemed to be a statement made to the public by, and only by, the person who had caused the statement to be so expressed, made or contained;
14. Though the counsel for the opposite parties have argued at length that they have given treatment with all sincerity and succeeded with several others, did not produce any scientific materials to substantiate their claim. Though it can be argued that a medicine may be successful for one patient, may not be for another. The quality of the medicine must be established through scientific method. In the absence of the same, such type of claim can only be equated with black magic.
Inspite of scientific advancement, and after enactment of several legislations, such type of advertisement of certain medicines, for cure of some disease, is practiced by some quacks and the health department authorities are mute spectators. Invention of a medicine if at all for treatment of an ailment must be subjected to scrutiny by scientific methods and unless it is certified, it should not be allowed to be used in public. In the case on hand contents of the preparation is unknown, pharmacopeia of preparation has not been informed and such type of illegal practice is unknown to medical field and it must be deprecated and banned once and for all. It is common, that illiterate mass in the country may believe such advertisement and follow blindly those who give false promises. In the case on hand the treatment given by the 1st and 2nd opposite parties is admitted. Allegation made by the complainant regarding sufferings also admitted, and under such circumstances prima-facie we may come to a conclusion that only because of the treatment undertaken, the complainant has suffered with total hair loss. We do not find any scientific proof for the promise made by the opposite parties. It appears that the complainant had blindly believed the promise and assurance of the opposite parties, which has resulted in the deformity. In a case of this nature, there need not be any medical opinion, and based on the available materials viz. Ex.A1 to A6, and on the basis of the present physical condition of the complainant, we can safely come to a conclusion that there was deficiency of service. Therefore we are of the view that the conclusion reached by the District Forum that there must be some expert opinion to substantiate the allegations, cannot be appreciated. Under such circumstances while setting aside the order passed by the District Forum, we have no hesitation to come a conclusion that the 1st and 2nd opposite parties have committed deficiency of service in the treatment given to the complainant.
15. In so far as the 3rd opposite party is concerned, apparently there is no privity of contract, and the complainant have not issued any notice to the 3rd opposite party. Under such circumstances, the complaint against the 3rd opposite party is liable to be dismissed.
16. Having held that the 1st and 2nd opposite parties have committed deficiency of service, and while appreciating and assessing the damage caused to the complainant, we find it necessary that she must be compensated effectively. It is alleged that the complainant is an unmarried girl, and she was aged at only 22 years at the time of filing the complaint. She was employed as an airhostess and was receiving a decent salary, and sensing that there was lot of hair fall, approached the 1st and 2nd opposite parties, on witnessing the programme in the 3rd opposite party television, and on payment of charges, undertaken treatment with the 1st and 2nd opposite parties, and ultimately resulted in the deformity as alleged.
17. Such programme in the form of advertisement are frequently made in the electronic and print medias. Though there are control mechanism, wherein the health department of Central and State Governments can closely monitor and streamline the same, no steps are being taken in this regard. It is appropriate for the authorities to ban such medicines, cosmetics etc. after proper investigation. Every day in and day out, we are coming across with such baseless advertisements, regarding treatment for certain ailments, inviting people to undertake such course, and in most of the cases, though it was not cured, it goes unnoticed. Therefore, the authorities of the health department, both the State and the Central Government is directed to take effective steps to curb and curtail such a large scale violations.
18. In view of the foregoing reasons, we are constrained to appreciate the allegations, and uphold that there is deficiency on the part of the 1st and 2nd opposite parties. The complainant underwent sufferings due to total hair fall, and she is bald headed. The complainant, who is presently aged about 25 years, is facing difficulties in the marriage opportunities. The pathetic look of the complainant would have caused untold misery and mental agony not only to the complainant but also to the parents of the complainant. In the above circumstances, the opposite parties 1 and 2 are liable to compensate her for their deficiency, which we fix at Rs.7 lakhs, alongwith cost of Rs.5000/-.
19. In the result, the appeal is allowed, by setting aside the order of the District Forum in CC.No.20/2008 dt.16.6.2009, and the complaint is allowed. The opposite parties 1 and 2 are directed to pay a sum of Rs.7,00,000/- (Rupees seven lakhs only) towards compensation for the sufferings and mental agony undergone by the complainant alongwith cost of Rs.5000/-, within 2 months from the date of the order.
20. Complaint against the 3rd opposite party is dismissed.
21. In view of the foregoing observations made, the Health Department of the Central Government and State Government are directed to take effective steps to ban such advertisements through electronic and printed media, and further to initiate necessary action against those who are indulging in such unfair trade practice.
22. Registry is directed to forward a copy of the order to the Health/Consumer Secretaries, of Central Government and State Government.
A.K. ANNAMALAI R. REGUPATHI JUDICIAL MEMBER PRESIDENT