State Consumer Disputes Redressal Commission
Delhi Nursing Home vs Amarbir Singh Bandesha & Ors. on 16 October, 2024
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
First Appeal No.1120 of 2022
Date of institution : 21.12.2022
Date of Reserve : 23.09.2024
Date of Decision : 16.10.2024
Delhi Nursing Home, near Street No.1, Bibiwala Road, Bathinda,
through its Proprietor Dr.Sanjay Garg.
.......Appellant/Opposite Party No.2
Versus
1. Amarbir Singh Bandesh, son of Sh.Randhir Singh, resident of
H.No.2, Khalsa Colony, Fatehgarh Churian, District Gurdaspur,
Now at present : Kari Testakkei 13, 4314, Sandnes Norway, through
its Power of Attorney Holder Sh.Amarjit Singh, son of Sh.Massa
Singh, resident of Talwandi Bhungrian, P.O. Dosanjh, District Moga.
.......Respondent No.1/Complainant
2. The New India Assurance Co.Ltd., Divisional Office, The Mall
Bathinda, Punjab.
3. Delhi Hair Clinic, near Street No.1, Bibiwala Road, Bathinda through
its Properietor/Incharge.
......Respondents No.2&3/Opposite Parties No.1&3
First Appeal under Section 41 of the
Consumer Protection Act, 2019
against the Order dated 30.08.2022
passed by the District Consumer
Disputes Redressal Commission
Bathinda in CC No.138 of 2018.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
Mr. Vishav Kant Garg, Member
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Present :-
For the appellant : Sh.Sahil Khunger, Advocate For respondents No.1&3 : None For respondent No.2 : Sh.Pradeep Kumar, Advocate F.A.No.1120 of 2022 2 SIMARJOT KAUR, MEMBER This Appeal has been filed by the Appellant/Opposite Party No.2 under Section 41 of the Consumer Protection Act, 2019 (in short 'The Act') being aggrieved by the impugned Order dated 30.08.2022 passed by the District Consumer Disputes Redressal Commission Bathinda (in short 'the District Commission') whereby the Complaint of the Complainant had been partly allowed.
2. It would be apposite to mention that hereinafter the parties will be referred, as had been arrayed before the District Commission.
3. Briefly, the facts of the case as made out by the Complainant before the District Commission are that the Complainant Sh.Amarbir Singh Bandesha was residing at Norway. The Complaint was filed by him through one Sh.Amarjit Singh with duly authorized Power of Attorney. The Complainant was having lesser hair (baldness) on the center part of his head. He had approached OPs No.1&2 for the said purpose. They had assured the Complainant that they were having experience in the field of hair transplantation. After giving assurance, the Complainant had fixed his appointment. He was to pay an amount of Rs.36,000/- for hair transplantation. The Complainant had travelled to Bathinda from Norway for his said treatment. The OPs had examined the Complainant and some tests were got conducted upon him on 05.12.2017. The Complainant had deposited an amount of Rs.36,000/- with the OPs. They had obtained consent and signature of the Complainant on blank and pre-printed papers. The OPs had started his transplant treatment on 05.12.2017 and took a bunch of hair from right, left and back side of his head. They had harvested hairs at F.A.No.1120 of 2022 3 the center area of the head of the Complainant. The procedure of surgery/transplantation had taken 5½ hours. It was alleged by the Complainant that it was settled with the OPs that the hair would grow slowly. It was also alleged that the Complainant had noticed that the hair had not grown on both sides of the head from where the bunch of hair was taken for transplantation. The Complainant had telephonically contacted the OPs on 29.12.2017, one Mr.Deep Assistant of OPs told that "jo nikale hai oh to nahi aunde lekin duje ball os area nu kover kar lainde aaa".
4. The Complainant had travelled to India again on 05.01.2018 and approached the OPs, who categorically informed him that there would be no hair growth on the donor area. Thereafter, the Complainant had consulted to Dr. Prabhdeep Sohi, of Reviva Clinic Sector 17 Chandigarh, who told him that the OPs had wrongly taken the bunch of hair from the donor area, whereas the hair was to be plucked from different-different area in lesser quantity. The only remedy to cover the baldness on both the sides of head was to get replantation of hair done at the donor area. The Complainant had requested the OPs either to replant hair on donor area or refund his amount spent by him i.e. Rs.36,000/- alongwith other travel expenses. However, the OPs had flatly refused his request. In such circumstances, he had to undergo one more surgery of hair transplantation for the donor area. He had spent Rs.50,000/- to get the said transplantation done from Reviva Clinic. He had alleged that due to negligent act of the OPs, he had to suffer physically and mentally. He had also suffered financial loss. He had filed the Complaint before the District Commission and sought F.A.No.1120 of 2022 4 directions to OPs to pay an amount of Rs.86,000/-, for transplantation on the center area of the head (Rs.36,000/-) and amount of Rs.50,000/- for replantation on the donor area due to the negligence of the OPs. Further, the OPs be directed to pay an amount of Rs.1,50,000/- for travel expenses and to pay Rs.2,00,000/- as compensation. Besides, to pay Rs.11,000/- as litigation expenses.
5. Upon issuance of notice, OP No.1 was proceeded ex-parte vide order dated 03.08.2018 by the District Commission.
6. Notice of the Complaint was issued to OP No.2, who had appeared through Counsel and filed his written statement by raising certain preliminary objections that the complaint of the Complainant was not maintainable. The Complainant had no cause of action and locus-standi to file the Complaint. The Complaint was frivolous, vexatious, malafide and filed with bad intention to put down the fair name and reputation of the answering OP. It was submitted that the OP No. 2 had obtained Doctor's Indemnity Insurance Policy from OP No. 3 and the liability if any, was to be borne by OP No.3. In case any liability was to be fastened upon him, it had to be borne by OP No.3. The Complainant had not approached the District Commission with clean hands. He had concealed certain material facts. The Complaint was filed on the wrong facts by mentioning a concocted story. That intricate questions of law and facts were involved. The matter was required to be adjudicated before the Civil Court.
7. On merits, OP No.2 had specifically denied that the Complainant had paid an amount of Rs.36,000/- on his transplantation treatment. In F.A.No.1120 of 2022 5 fact the Complainant had paid an amount of Rs.30,000/- (including service charges/fee of doctor of Rs.20,000/- and applicable taxes/GST, medical tests, PRP and medicines etc.). It had been pleaded that the Complainant had introduced himself to be an MBBS doctor. All the pros and cons of the surgery were duly explained to him. Thereafter, his consent was obtained. He had undergone the transplantation of hair after understanding the procedure involved therein. The roots of hair were taken from back side of the head on the asking of Complainant himself. The same were harvested on center part of his head. It was a cosmetic procedure. Even guarantee had been given for any service related to problem/correction for one year free of cost. It had also been pleaded that the Complainant was made aware before the surgery that hair would grow slowly on surgical area and not on the donor area from where the roots of hair were taken for transplantation. It was foolish for a doctor to aver that a hair root (any organ) once removed would re- grow at original place The Complainant himself was a doctor and was well aware that hair would not regrow on the donor area. The answering OP had denied all other averments of the Complainant and had prayed for Dismissal of the Complaint.
8. The OP No.3 had filed its separate written reply by raising certain objections that OP No.2 was a highly qualified and renowned doctor in hair transplantation/harvesting the hair on every part of body. He had vast experience in treatment of hair transplantation. It was not a case that OP No.2 was negligent in hair transplantation and he had not taken necessary care and precaution which was expected from him. OP No.2 has obtained Professional Indemnity Insurance (Doctor) Policy vide F.A.No.1120 of 2022 6 policy No.36060036170400000004 valid from 18.06.2017 to 17.06.2018. The same was a contract of insurance to indemnify the insured regarding any legal liability /award /order which had been satisfied by the insured. Since no award/liability/order had been passed against the answering OP by the District Commission, therefore OP No. 3 could not be impleaded as party. Its name was liable to be deleted from the array of the OPs. As per Exclusions clause 7(1)(v) of terms and condition of policy, there was no liability on the part of answering OP in respect of claims under the insured arising from the performance of cosmetic plastic surgery, hair transplant, punch grafts, flap rotations. No expert evidence had been placed on record, which could prove that the answering OP was negligent in any manner. The liability of the OP No.3 was to indemnify the insured was limited as per terms and conditions of the Insurance Policy. The policy did not cover liability as per terms and conditions of policy. Furthermore, as per Exclusion clause 7(2)(v), policy could not cover risk arising from fines, penalties, punitive or exemplary damages or any other damages resulting from compensatory damages. The dispute involved in the complaint and the issues raised by the Complainant/OP No.1&2 involved complicated questions of law. These could only be adjudicated with extensive evidence and cross-examination of witness, the same could not be decided in the summary proceedings before this Commission. The amount of compensation claimed was excessive. Even otherwise the answering OP was not liable at all. No privity of contract existed between the Complainant and OP No.3. On merits, it had reiterated its version as pleaded in the above said objections. The OP No.3 had also prayed for dismissal of the Complaint. F.A.No.1120 of 2022 7
9. By considering the averments made in the Complaint as well as in the reply thereof, the Complaint filed by the Complainant was partly allowed vide order dated 30.08.2022 passed by the District Commission. The relevant part of said order is reproduced as under:-
"27. In view of what has been discussed above, this complaint is partly allowed with Rs.10,000/- as cost and compensation against opposite parties No. 1 & 2. The opposite parties No. 1 & 2 are further directed to pay Rs.50,000/- (spent by complainant on subsiquent hair transplantation) to the complainant.
28. The compliance of this order be made by the opposite parties No. 1 & 2 jointly and severally within 45 days from the date of receipt of copy of this order failing which the amount of Rs.50,000/- shall carry interest @ 8% p.a. till realization."
10. The Appellant/OP No.2 has filed the present Appeal being aggrieved by the order dated 30.08.2022 passed by the District Commission by raising a number of arguments.
11. Mr.Sahil Khunger, Advocate, learned Counsel for the Appellant/OP No.2 has argued on the similar lines as per the written reply filed before the District Commission. Learned Counsel has submitted that the District Commission had totally ignored the evidence brought on record and partly allowed the Complaint of the Complainant. There was no deficiency in service on the part of the Appellant/OP No.2 in providing proper treatment to the Respondent No.1/Complainant. The Respondent No.1/Complainant had not entitled any compensation as awarded by the District Commission. Learned Counsel has further submitted that when the Respondent F.A.No.1120 of 2022 8 No.1/Complainant had approached the Appellant/OP No.2 it was suggested that since the hair on the backside as well as right and left side of the head were also less/scanty, the Complainant should get the hair harvested on the entire head. He just wanted to coverup baldness in the center part only. After he got the treatment done from the Appellant/OP No.2, the Complainant concocted a false story to get the money from OP No.2. The District Commission without obtaining any medical opinion about the alleged deficiency directed the Appellant/OP No.2 to pay Rs.50,000/- for the subsequent hair transplantation. The District Commission had not called for any report from the medical board for the alleged deficiency raised by the Respondent No.1/Complainant, whereas the Hon'ble Supreme Court in various judgments has held that before proceeding against the doctors for the medical negligence alleged on their part, the report from a Medical Board is required to be called for. However, in the present case no medical report had been called before the District Commission.
12. Learned Counsel has further submitted that the Respondent No.1/Complainant had not impleaded Reviva Clinic as party as he was aware that in case it was impleaded then the reality of the entire case would be exposed. The Complainant had orally averred that Dr.Pradeep Sohi of Reviva Clinic told him that treatment given by the Appellant/OP No.2 was not correct and now re-plantation was required to be done at the donor areas.
13. The District Commission had also ignored that Appellant/OP No.2 had obtained professional indemnity Insurance which was valid from 18.06.2017 to 17.06.2018. Since it was a F.A.No.1120 of 2022 9 professional indemnity insurance, the Respondent No.2/OP No.3 was liable to indemnify the Appellant/OP No.2 but the District Commission put burden on the OP No.2 with compensation. Learned Counsel has prayed for acceptance of the Appeal.
14. Mr.Pradeep Kumar, Advocate learned Counsel for the Respondent No.2/OP No.3 has argued on the similar line as per the written reply filed before the District Commission. Learned Counsel has submitted that the Respondent No.2/OP No.3 was not required to be impleaded as party and its name was to be deleted from the array of OPs. The District Commission had not awarded any compensation and pointed out any deficiency on the part of OP No.3. No expert report/evidence had been placed on record to prove that the said doctor was negligent in any manner. The liability of the Respondent No.2/OP No.3 to indemnify the insured is limited as per terms and conditions of the Insurance Policy. The policy does not cover liability as per terms and conditions. As per Exclusion Clause 7 (2) (v), policy cannot cover risk arising from fines, penalties, punitive or exemplary or any other damages resulting from any compensatory damages.
15. We have heard the oral arguments raised by learned Counsel for the Appellant as well as Counsel for Respondent No.2. None has appeared on behalf of Respondents No.1&3 despite service. We have also perused the order dated 30.08.2022 as well as all the relevant documents available on the file.
16. Facts relating to the filing of the Complaint by the Complainant before the District Commission, reply thereof, the oral arguments raised by learned counsel for the parties and passing of F.A.No.1120 of 2022 10 impugned order dated 30.08.2022 by the District Commission, thereafter filing of present appeal before this Commission by the Appellant/OP No.2 are not in dispute.
17. The issue before us is as to whether the Complainant is to be compensated/entitled for refund as he was not satisfied with the outcome of hair transplantation conducted by Appellant/OP No.2 or not? Thereafter, he again got replantation of hair in donor area from another clinic and had to bear extra expenses.
18. To reach to the right conclusion we have perused the documents placed in the case file. It has been observed that though the Respondent No.1/Complainant has mentioned that was made to sign consent/blank pages/preprinted pages, but Appellant/OP No.2 has not annexed/produced any such informed consent form wherein he had explained the procedure/complications/results involved in hair transplantation of the Respondent No.1/Complainant.
In light of above, we deem it appropriate to comment that Hair transplantation is an elective aesthetic surgery, in such surgeries it is of utmost importance that informed consent has to be obtained and. The treating cosmetic surgeon in the instant case had to explain the condition of hair loss, the causes, progress, prognosis, and all available treatment options to the Complainant. It was his bounden duty to ensure that the Complainant/patient had fully comprehended the important information regarding hair transplantation and the results thereof. However, the Appellant doctor has failed to perform his moral duty with regard to obtaining of informed consent in the present case. F.A.No.1120 of 2022 11
19. On the other hand, it has also been observed that the Respondent No.1/Complainant had not tendered any expert opinion to prove negligence on the part of the treating doctor/Appellant. However, the Complainant had placed on record the subsequent treatment undertaken by him at REVIVA Clinic, Chandigarh (Ex.C-9, C-10). Said documents had proved that the Respondent No.1/Complainant was dissatisfied with the outcome of hair transplantation done by the Appellant-Doctor. The Respondent No.1/Complainant had to incur extra expenses of an amount of Rs.50,000/- (Ex.C-8).
20. A thorough perusal of the documents annexed in the case file has clearly established that there have been shortcomings on part of both the parties as the Appellant/OP No.2 has not tendered informed consent form obtained from the Complainant and the Complainant has also not tendered any medical expert opinion to prove the 'deficiency in service' and 'unfair trade practice' on the part of the Appellant. It is a matter of fact that the medical expert opinion if produced by the Complainant could have only been considered only, in case the informed consent had been obtained by the Appellant/OP No.2. In such an eventuality, the balance of convenience involved in the case in hand goes in favour of the Complainant.
21. Furthermore, the terms and conditions of the Insurance Policy annexed by the Appellant to indemnify his liability (in case any fastened upon him) have also been perused. It has been found out that as per Exclusion Clause 7 (1) (v) and 7 (2) (v), the Insurance Company is not liable to indemnify the Appellant/OP No.2. The relevant portion of the terms and conditions reproduced as under:-
F.A.No.1120 of 202212
7. Exclusions
1. No liability shall attach to the Company in respect of
(i) xxxxxxxxx
(ii) xxxxxxxxx
(iii) xxxxxxxxx
(iv) xxxxxxxxx
(v) Claims made against the Insured arising from the performance of cosmetic plastic surgery, hair transplants, punch grafts, flat rotations and XXXXXX
2. This policy does not cover liability
(i) xxxxxxxx
(ii) xxxxxxxxx
(iii) xxxxxxxxx
(iv) xxxxxxxxx
(v) arising out of fines, penalties, punitive or exemplary damages.
22. We have also perused the order dated 30.08.2022 passed by the District Commission, which has rightly been adjudicated in the following terms:
26. Thus, Analyising facts, circumstances and keeping in view the evidence placed on file by the parties, this Commission is of the considered opinion that there is negligence/deficiency in service on the part of the opposite parties in not providing proper treatment to the complainant despite charging for the same. This is a case where opposite parties transplanted the hairs to cover Bald area and created another Bald area by over harvesting the donor area and the complainant again had to get transplantation of hair from another Clinic. Hence, complainant is entitled to payment of said amount in addition to some amount of compensation for physical and mental harassment which he suffered at the hands of the opposite parties.
23. In the light of above mentioned observations and reasons, we find no merit in the contentions raised by learned Counsel for the Appellant. The impugned order passed by the District Commission is a well-reasoned and no interference is required. Accordingly, the F.A.No.1120 of 2022 13 Appeal filed by the Appellant is dismissed and the order dated 30.08.2022 is upheld.
24. The Appellant had deposited an amount of Rs.30,000/- at the time of filing the appeal with this Commission. Said amount, along with interest, which has accrued on the amount deposited by the appellants, if any, shall be remitted by the Registry to the District Commission after the expiry of 45 days of sending of certified copy of the order to the parties. The concerned party(s) may approach the District Commission for release of the same and the District Commission may pass the appropriate order in this regard, in accordance with law.
25. Since the main case has been disposed off, so all the pending miscellaneous applications, if any, are accordingly, disposed off.
26. The Appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER (VISHAV KANT GARG) MEMBER October 16, 2024 (Rupinder 2)