State Consumer Disputes Redressal Commission
Mr. A.C. Joseph, vs M/S Vasan Eye Care Hospital, on 24 May, 2011
Daily Order
First Appeal No. A/10/615 (Arisen out of Order Dated 30/07/2010 in Case No. CC/07/258 of District Ernakulam) A.C.JOSEPH Vs. VASAN EYECARE HOSPITAL and Others BEFORE: Sri.M.V.VISWANATHAN PRESIDING MEMBER PRESENT: Dated : 10 May 2011 ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
COMMON JUDGMENT IN
APPEAL Nos. 615/10 & 81/11
JUDGMENT DATED: 24-05-2011
PRESENT:
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
APPEAL No. 615/2010
APPELLANT Mr. A.C. Joseph, S/o Late Chacko, Arackaparambil, Cherthala P.O., Alappuzha District.
(Rep. by Adv. Sri. N.R. Chandrasekharan) Vs RESPONDENTS
1. M/s Vasan Eye Care Hospital, Opp. Shipyard, M.G. Road, Ernakulam, Kochi - 15.
Rep. by its Chief Executive Officer.
2. Dr. Jacob Mathew, Vasan Eye Care Hospital, M.G. Road, Kochi - 15.
APPEAL No. 81/2011APPELLANTS
1. M/s Vasan Eye Care Hospital, Opp. Shipyard, M.G. Road, Ernakulam, Kochi - 15.
Rep. by its Authorised Officer Mr. Divakaran. C. , S/o Late K.V. Govinda Menon.
2. Dr. Jacob Mathew, Vasan Eye Care Hospital, M.G. Road, Kochi - 15.
(Rep. by Adv. Sri. George Cherian Karippaparambil & Sri. S. Reghukumar) Vs RESPONDENT Mr. A.C. Joseph, S/o late Chacko, Arackaparambil, Cherthala P.O., Alappuzha District.
COMMON JUDGMENT SHRI . M.V. VISWANATHAN : JUDICIAL MEMBER The above first appeals are preferred from the order dated 30-07-2010 of the CDRF, Ernakulam in CC No. 258/07. The complaint therein was filed alleging unfair trade practice and deficiency of service on the part of the opposite parties 1 and 2 in publishing advertisements regarding the treatment given from the first opposite party Vasan Eye Care Hospital and also in treating the complainant and in collecting the charges from the complainant. It was alleged that the first opposite party Vasan Eye Care Hospital published misleading advertisements and believing the aforesaid advertisements regarding treatment, the complainant approached the second opposite party Dr. Jacob Mathew attached to the first opposite party Vasan Eye Care Hospital and that the second opposite party had also given false assurance that after the surgical procedures the complainant can say goodbye to glasses and that thereby the complainant spent Rs. 60,000/- towards the treatment expenses and suffered mental agony and inconvenience due to the unfair trade practice and deficiency in service on the part of the opposite parties.
2. The opposite parties entered appearance and filed separate written versions denying the alleged deficiency in service and unfair trade practice. They also denied the allegation regarding misleading and false advertisements given by the first opposite party. It was contended that the particular advertisement was not related to cataract and that the complainant approached the opposite parties for defective vision due to cataract in both his eyes. Thus, the opposite parties prayed for disposal of the complaint in CC No. 258/2007.
3. Before the Forum below, the complainant was examined as PW1 and an expert Eye Specialist was examined as PW2. Another witness on the side of the complainant was examined as PW3. Exts. A1 to A16, C1 and C2 documents were also marked on the side of the complainant. From the side of the opposite parties the second opposite party Dr. Jacob Mathew was examined as DW1. Ext. B1 advertisement published in Mathrubhoomi daily dated 14-10-2007 was also marked. On an appreciation of the evidence on record, the Forum below passed the impugned order finding the opposite parties guilty of unfair trade practice and thereby the opposite parties are made jointly and severally liable to pay Rs. 60,000/- to the complainant with interest at the rate of 12% per annum from the date of the order till realization and cost of Rs. 1,000/-. Aggrieved by the said order, the opposite parties filed the first appeal No. 81/11 praying for setting aside the impugned order passed by the Forum below. The complainant A.C. Joseph is not fully satisfied with the quantum of compensation awarded by the Forum below. Thereby, the complainant preferred the first appeal No. 615/2010 requesting for enhancement of the compensation.
4. We heard the Counsel for both the parties in these appeals. Both the Counsel vehemently submitted their arguments based on the grounds urged in the memorandum of the present appeals. Thus, the appellant/complainant (FA No. 615/2010) prayed for awarding the compensation of Rs. 4,00,000/- as claimed in the consumer complaint No. 258/07. On the other hand, the appellants/opposite parties (FA No. 81/2011) prayed for setting aside the impugned order passed by the Forum below and thereby to dismiss the complaint in CC No. 258/2007.
5. For the sake of convenience and to avoid further confusion in the matter, this State Commission is pleased to refer the parties to these appeals according to their rank and status before the Forum below (CDRF, Ernakaulam) in CC No. 258/2007.
6. The points that emerge for consideration are as follows:
1. Whether there was any unfair trade practice on the part of the first opposite party Vasan Eye Care Hospital in publishing advertisements as published in A9 advertisement published in Malayala Manorama daily dated 29-04-2007?
2. Whether there was any deficiency in service on the part of the first opposite party Vasan Eye Care Hospital and the second opposite party Dr. Jacob Mathew attached to Vasan Eye Care Hospital in treating the complainant for his defective visions?
3. Whether the Forum below can be justified in finding unfair trade practice on the part of opposite parties 1 and 2?
4. Whether the Forum below can be justified in finding the opposite parties not guilty of deficiency in service?
5. Whether the compensation of Rs. 60,000/- awarded by the Forum below can be treated as just and reasonable compensation for the unfair trade practice on the part of opposite parties 1 and 2?
6. Whether the complainant's claim for Rs. 4,00,000/- by way of compensation can be treated as just and reasonable?
7. Is there any legally sustainable ground to interfere with the impugned order dated 30-07-2010 passed by CDRF, Ernakaulam in CC No. 258/2007?
7. Point Nos. 1 to 4: The definite case of the complainant is that the first opposite party published misleading advertisements in Malayala Manorama daily and other printed media and also by advertisement boards and that by giving such advertisements the first opposite party promised complete freedom from glasses and contact lense and that the complainant was attracted by those advertisements and that he approached the second opposite party doctor attached to the first opposite party hospital for discarding the glasses (spectacle) which he used to correct his defective vision. It is the further case of the complainant that the second opposite party doctor attached to the first opposite party hospital had also given the very same assurance that by going through the surgical procedure the complainant need not use spectacles. Ext.A9 is one of those advertisements published by the first opposite party Vasan Eye Care Hospital. It is true that A9 is the advertisement published in Malayala Manorama daily dated 29-04-2007. The first opposite party admitted the fact that they had published the very same advertisements on daily news papers and other advertisement boards earlier. There is no case for the opposite parties that the complainant had no occasion to go through the advertisements like the one in A9 prior to the complainant's treatment in the first opposite party hospital. Thus, the fact that the first opposite party published such advertisements like A9 advertisement is an admitted fact.
8. The definite case of the opposite parties is that the said advertisement was not related to cataract; but it is related to zyoptix laser treatment. The Forum below considered the aforesaid advertisements like A9 published at the instance of the first opposite party Vasan Eye Care Hospital. A perusal of A9 advertisement would show that the said advertisement is sufficient to give an impression in the mind of the reader of the said advertisement that a person approaching the first opposite party Vasan Eye Care Hospital for treatment can say goodbye to glasses and contact lenses. The case of the opposite parties that the advertisement like A9 was intended for young people cannot be accepted. The aforesaid advertisement would not show that the said advertisement is with respect to the treatment of a particular class of people namely, young people. On the other hand, it would only show that the patients who are capable of undergoing treatment at the first opposite party hospital can avoid glasses and contact lenses. The mere fact that in A9 advertisement the picture depicted is that of a young lady cannot be taken as a ground to hold that the said advertisement is related to or intended for young people alone. So, the Forum below has rightly held that advertisements like A9 would mislead the patients like the complainant and giving such advertisement would amount to unfair trade practice.
9. The opposite parties much relied on B1 advertisement given in Mathrubhoomi daily dated 14-10-2007. A perusal of B1 advertisement given by the first opposite party Vasan Eye Care Hospital would make it clear that the said advertisement is related to cataract. The mere fact that the first opposite party issued B1 advertisement cannot be taken as a ground to hold that A9 advertisement or the like advertisements are not related to cataract. It was the bounden duty of the first opposite party to avoid confusion and that the first opposite party was never expected to give such misleading advertisements like the one published in A9 newspaper. So, the Forum below has rightly held that the first opposite party adopted unfair trade practice in giving such advertisements like A9 and thereby the general public were misled. No doubt that the aforesaid advertisement was given to attract patients like the complainant. So, the complainant can be justified in making an allegation against the opposite parties that the opposite parties made misleading or false advertisements to attract patients.
10. The second opposite party Dr. Jacob Mathew in his oral testimony as DW1 has categorically deposed that advertisements like A9 were given by the first opposite party in consultation with the second opposite party. A close scrutiny of the testimony of DW1 would give an indication that he advised the complainant to have bifocal lens to be implanted after the cataract surgery and that it is as directed by the second opposite party the complainant consented for implantation of bifocal lens. It would also give an indication that the complainant permitted implantation of bifocal lens only to avoid use of spectacles. The complainant as PW1 has categorically deposed that he approached the opposite parties for his treatment with the sole purpose of avoiding use of spectacles. He also deposed that he was attracted by the advertisement given by the first opposite party Vasan Eye Care Hospital. PW3, the witness examined from the side of the complainant has also deposed that the second oppsote party doctor had given the assurance to the complainant that after the operation the complainant can avoid use of spectacles. The testimony of PW3 that he accompanied the complainant on the date of consultation with the second opposite party at the first opposite party hospital and he also accompanied on the dates of the cataract surgery can be believed. There is no reason or ground to doubt the testimony of PW3 that he accompanied the complainant to the first opposite party hospital on the date of consultation and also on the dates of the cataract surgery. Thus, the second opposite party Dr. Jacob Mathew is also guilty of unfair trade practice, by giving such an assurance that the complainant can avoid use of spectacle after the surgical procedure. So, this Commission have no hesitation to uphold the findings of the Forum below that the opposite parties are guilty of unfair trade practice in giving such advertisements like A9 and in giving assurance to the complainant that he can avoid use of spectacle by the implantation of bifocal lens.
11. The complainant has also alleged deficiency in service on the part of the opposite parties. The complainant has also got a case that the two cataract surgeries were also conducted by the second opposite party unnecessarily and thereby the complainant incurred unnecessary expenses. A perusal of the testimony of complainant as PW1 would make it clear that he had consultation with the second opposite party for the first time on 26-08-2006 and the said consultation was at first opposite party Vasan Eye Care Hospital. It would also show that he approached the opposite parties with the complaint of decreased vision. It is admitted by PW1 that the doctor told him that he has cataract for both eyes and the said cataract is more in the right eye than the left eye. Testimony of PW1 that he is totally ignorant about cataract cannot be believed for a moment. It is to be noted that the complainant is having sufficient general knowledge. He has passed ESSLC and he has been doing business. So, it is highly improbable to believe that the complainant was totally ignorant about the cataract, the decease to the eyes known as cataract.
12. Ext.A1 is the discharge summary issued from the first opposite party Vasan Eye Care Hospital and the same is signed by the second opposite party Dr. Jacob Mathew, Consultant (Phaco & Anterior Segment Surgery). A1 discharge summary would show that the complainant was admitted in first opposite party hospital on 06-12-2006 and he had undergone cataract surgery with bifocal IOL implantation under topical anaesthesia. He was discharged on the same day. It was diagnosed that the complainant was having cataract Grade-II for his right eye and cataract Grade-I for his left eye. The complainant was aged 72 years on 06-12-2006. The procedure done (surgical procedure) is described as RE Phaco Emulsification with bifocal IOL under topical anesthesia. The complainant has no dispute regarding the entries in A1.
13. Ext.A2 is another discharge summary for the second cataract surgery done on the complainant by the second opposite party Dr. Jacob Mathew at the first opposite party hospital on 13-12-2006. A2 discharge summary would also show that the complainant was suffering from cataract to his left eye and that cataract was removed by doing the surgical procedure Phaco Emulsification and bifocal IOL was implanted. Thus, A1 and A2 documents would make it crystal clear that the complainant had cataract in his both eyes and the cataracts were removed by surgical procedures and bifocal IOL was implanted to have the vision to both eyes.
14. An expert was examined from the side of the complainant as PW2. The oral testimony of PW2 would make it abundantly clear that the surgical procedures done by the second opposite party Dr. Jacob Mathew were the standard procedure for removal of cataract and for providing proper vision to both the eyes of the complainant. The evidence of PW2 would make it further clear that the complainant had defective vision due to cataract (Newclear sclerosis) and the cataract to the right eye/severe than that of the left eye. PW2 has no case that the procedures adopted by the second opposite party were unnecessary procedures. He could not find any defect or abnormality or irregularity in those procedures adopted by the second opposite party Dr. Jacob Mathew. The evidence of PW2 is sufficient enough to hold that the second opposite party was not negligent in treating the complainant and that the second opposite party has done the surgical procedures with sufficient and reasonable care and caution. There is no reason or ground to discard the testimony of PW2 regarding the competency of the second opposite party and the procedure adopted by the second opposite party in treating the complainant.
15. The evidence of PW2 would also make it clear that even after implantation of bifocal lens, in the case of few patients there may occur the necessity to wear glasses to correct the vision. It is to be noted that PW2 Dr. Sasi Kumar had the opportunity and occasion to examine the complainant and he was convinced about the surgical procedures and the treatment conducted by the second opposite party. PW2 has also spoken to about C1 and C2 case sheets with respect to the treatment of the complainant at the first opposite party hospital. The entries in C1 and C2 case sheets would also make it clear that the complainant consented for the aforesaid surgical procedures and it is with the free consent of the complainant the aforesaid cataract surgeries were conducted on 06-12-2006 and 13-02-2006 and those surgical procedures were successful. It is true that even after implantation of bifocal lens the complainant was advised to wear spectacle to have sharp vision. At the same time PW2 has categorically deposed that by the cataract surgeries and implantation of bifocal lens the complainant obtained functional vision. So, the Forum below has rightly held that there was no sort of negligence, laches or omission on the part of the opposite parties in doing the cataract surgery and implantation of bifocal lense. The second opposite party Dr. Thomas Mathew as DW1 has also deposed in support of the case pleaded by the opposite parties. So, this State Commission have no hesitation to endorse the findings of the Forum below that there was no deficiency in service on the part of the opposite parties in treating the complainant at the first opposite party hospital. These points are answered accordingly.
16. Point Nos. 5 to 7: The complainant has claimed a total compensation of Rs. 4,00,000/- for the alleged unfair trade practice and deficiency in service. The Forum below rightly held that there was unfair trade practice on the part of opposite parties in publishing misleading and confusing advertisements. At the same time, the Forum below has rightly held that there was no deficiency in service or negligence on the part of opposite parties in doing the surgical procedures and treatment for the complainant. It is to be noted that the complainant was suffering from cataract to his both eyes. He was benefited by the cataract surgeries and implantation of bifocal lense. The complainant regained his vision to both eyes. It is true that the complainant has to wear glass to get sharp vision; but at the same time the complainant is having the functional vision to his both eyes and that the complainant achieved the said benefit of functional vision only because of the treatment which he had undergone at the first opposite party hospital. The aforesaid surgical procedures and treatment were done by the second opposite party. So, the claim for compensation to the tune of Rs. 4,00,000/- is an exorbitant claim. The Forum below has rightly disallowed the aforesaid unreasonable and tall claim. The Forum below considered all the relevant aspects of the case. The Forum below appreciated the evidence both oral and documentary and the appreciation of the evidence is in the correct perspective. For the unfair trade practice the Forum below directed the opposite parties to pay compensation of Rs. 60,000/-. Considering the nature and gravity of unfair trade practice adopted by the opposite parties, the compensation of Rs. 60,000/- ordered by the Forum below can be considered as very reasonable and fair. The impugned order passed by the Forum below does not warrant any interference at the hands of this State Commission. So, this Commission is pleased to uphold the impugned order passed by the Forum below in CC No. 258/2007. If that be so, the present appeals preferred by the complainant and opposite parties deserve dismissal. These points are answered accordingly.
17. In the result, the FA No. 615/10 preferred by the complainant and the FA No. 81/11 preferred by the opposite parties in CC No. 258/07 are dismissed. The impugned order dated 30-07-2010 passed by CDRF, Ernakulam in CC No. 258/07 is confirmed. As far as these appeals are concerned, the parties are directed to suffer their respective costs.
M.V. VISWANATHAN : JUDICIAL MEMBER
Sr.
[ Sri.M.V.VISWANATHAN] PRESIDING MEMBER